[No. L-14569.

November 23, 1960]

BENITO CODILLA, ET AL., petitioners vs. JOSE L.

MARTINEZ, ETC., ET AL., respondents.

1. MUNICIPAL CORPORATION; IRREGULAR

DESIGNATION OF ACTING MAYOR; MAY BE
CONSIDERED DE FACTO OFFICER.—Although the
designation made by a ranking municipal councilor of the
third ranking Councilor of a municipality to act as acting
Mayor was irregular, because it was not made in
accordance with the provisions of Section 2195 of the
Revised Administrative Code and Section 21 (a) of the
Revised Election Code, still he was acting under a color of
authority, as distinguished from usurper who is one who
has neither title nor color of right to an office. His acts are
therefore official acts of a de facto officer. If they are made
within the scope of the authority vested by law in the
office of the Mayor, such acts are valid and binding.

2. ID.; TENURE OF TEMPORARY APPOINTMENT OF

POLICEMAN.—A temporary appointment is similar to
one made in acting capacity, the essence of which lies in
its temporary character and its terminability at the
pleasure of the appointing powers.

3. ID. ; REPLACEMENT OF NON-ELIGIBLES BY NON-

ELIGIBLES.—The replacement of non-eligibles by non-
eligibles is lawful under and pursuant to Section 6824 the
Revised Administrative Code.

4. ID.; REPUBLIC ACT 557 DOES NOT PROTECT

TENURE OF OFFICE OF NON-ELIGIBLES.—Republic
Act No. 557 only guarantees the tenure of office of
policemen who are eligibles. Non-eligibles do not come
under its protection. (Orais, et al. vs. Ribo, et al, 93 Phil.,
985; 49 Off. Gaz., [12] 5386.)

APPEAL from a judgment of the Court of First Instance of

Davao. Gomez, J.
The facts are stated in the opinion of the Court.
Teodoro V. Nano for appellants.
 The Provincial Fiscal of Davao for appellee.

BAUTISTA ANGELO, J.:

On January 24, 1956, Hermenegildo C. Baloyo, mayor of

Tagum, Davao, left for Negros Occidental to attend to a
sick brother. Thereupon, he designated the vice-mayor to
act in his place effective January 25, 1956 until further
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VOL. 110, NOVEMBER 23, 1960 25

Codilla vs. Martinez

advice on his part. The vice-mayor in turn fell sick of

certain lung trouble in view of which he designated ranking
councilor Macario Bermudez as acting mayor effective
January 25, 1956 until notice to the contrary. Councilor
Bermudez was not also in good health and so he designated
the third ranking councilor Jose L. Martinez to act as
mayor effective on the same date.
Martinez accepted the designation and assumed the
office on January 25, 1956, his first official act being to
separate from the service the petitioners as policemen of
the municipality. Petitioners immediately filed their
protest invoking the right to continue in office under the
provisions of Republic Act 557, but far from heeding their
protest, Acting Mayor Martinez appointed Eduardo M.
Duaso municipal policeman in lieu of Benito Codilla who
immediately qualified by taking his oath of office. The
appointment was approved by the President of the
Philippines and the Commissioner of Civil Service.
Martinez also appointed Juanito Redoble vice Perfecto
Melendres, the appointment having been authorized by the
Commission of Civil Service. Redoble also assumed office
soon thereafter. Policarpio Lagura was also appointed vice
Leonardo Castor, his appointment having been issued by
incumbent Mayor Baloyo who in the meantime returned to
office. He also immediately qualified by taking the oath of
office.
On February 15, 1956, Benito Codilla and his
companions filed a petition for mandamus before the Court
of First Instance of Davao against Acting Mayor Martinez
and incumbent Mayor Baloyo alleging that their separation
from the service as municipal policemen was illegal
because being civil service employees their employment
cannot be terminated except for cause, and so they prayed
that respondents be ordered to restore them to their former
positions with payment of their back salaries. They also
prayed for moral and exemplary damages to the tune of
P7,000.00 and for attorney's fees in the amount of
P1,000.00.

26

26 PHILIPPINE REPORTS ANNOTATED

Codilla vs. Martinez

They included as co-respondents the policemen who were

appointed in their places.
Respondents in their answer set up the defense that the
appointments of petitioners having been made under
Section 682 of the Revised Administrative Code in a
temporary capacity, because they are not civil service
eligibles, the same were valid only for three months and so
their continuance in office after the expiration of that
period was illegal; that even assuming that Acting Mayor
Martinez had no authority to terminate their employment,
his action was validated when incumbent Mayor Baloyo
endorsed and ratified the same by his subsequent official
actuation; and that, not being civil service eligibles,
petitioners may be separated from the service under the
provisions of Republic Act No. 557 upon the expiration of
the term of three months given to them in their
appointments.
On the strength of the stipulation of facts and additional
evidence submitted by the parties, the trial court rendered
judgment dismissing the petition on the ground that the
separation of petitioners from the service was made in
accordance with law. Hence the present appeal.
One peculiar thing that appears dominant in the present
case is the fact that the official who assumed office as
acting mayor of Tagum, Davao, by designation made by the
ranking municipal councilor is Jose L. Martinez who was
only then the third ranking councilor of the municipality
for which reason petitioners argued from the very start
that their separation was illegal because the designation of
Martinez as acting mayor was not made in accordance with
the provisions of Section 2195 of the Revised
Administrative Code and Section 21 (a) of the Revised
Election Code under which such designation should be
made by the provincial governor with the consent of the
provincial board. Nevertheless, the trial court did not
consider the designation of Martinez as acting mayor
entirely void, or one that would make him a usurper, but at
most a de facto officer whose acts may be given validity in
the
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VOL. 110, NOVEMBER 23, 1960 27

Codilla vs. Martinez

eye of the law. Thus, the trial court said: "Although his
designation was irregular, still he was acting under a color
of authority, as distinguished from a usurper who is 'one
who has neither title nor color of right to an office.' * * *
The acts of Jose L. Martinez are therefore official acts of a
de facto officer. If they are made within the scope of the
authority vested by law in the office of the mayor of Tagum,
such acts are valid and binding." To this opinion we agree
it appearing that all the elements constituting a de facto
office are here present.

"An officer de facto is to be distinguished from an officer de Jure,

and is one who has the reputation or appearance of being' the
officer he assumes to be but who, in fact, under the law, has no
right or title to the office he assumes to hold. He is distinguished
from a mere usurper or intruder by the fact that the former holds
by some color of right or title while the latter intrudes upon the
office and assumes to exercise its functions without either the
legal title or color of right to such office." (McQuillin, Municipal
Corporations, Vol. 3, 3rd ed., pp. 376-377.)
"To constitute a de facto officer, there must be an office having
a de facto existence, or at least one recognized by law and the
claimant must be in actual possession of the office under color of
title or authority. State vs. Babb, 124 W. Va. 428, 20 S. E. (2d)
683." (McQuillin, Municipal Corporations, supra footnote No. 11,
p. 383.)

Another factor that may be invoked in favor of the validity

of the official actuation of Acting Mayor Martinez is the
fact that all his official acts done under his designation
were subsequently endorsed and ratified by the incumbent
mayor when he returned to office. This ratification served
to cure any legal infirmity the acts of Acting Mayor
Martinez may have suffered because of his irregular
designation.
This brings us to the question whether the termination
of employment of petitioners as municipal policemen was
made contrary to the law which safeguards the rights of an
employee to his office in the government service. While it
 may be gleaned from the surrounding circumstances that
the hand of politics has intervened in the separation
28

28 PHILIPPINE REPORTS ANNOTATED

Director of Lands vs. De Luna

of petitioners who apparently had been for sometime

serving the government as policemen during the previous
administration, we cannot escape the fact that they were
merely given temporary appointments for the reason that
they do not have civil service eligibility thus making their
status as employees wholly dependent upon the grace of
the ruling power. And this we say because, as we ruled in a
series of cases, "A temporary appointment is similar to one
made in acting capacity, the essence of which lies in its
temporary character and its 1 terminability at the pleasure
of the appointing power." We also postulated that "The
replacement of non-eligibles by non-eligibles is lawful
under and pursuant to 2 Section 682 of the Revised
Administrative Code." Petitioners cannot, therefore,
invoke in their favor the provisions of Republic Act No. 557
because this Act only guarantees the tenure of office of
policemen who are eligibles. Non-eligibles do not come
under its protection. (Orais, et al vs. Ribo, et al., supra.)
Hence, much as we sympathize with petitioners, our hand
is stayed by the inexorable provisions of the law.
Wherefore, the decision appealed from is affirmed,
without pronouncement as to costs.

Parás, C. J., Bengzon, Padilla, Labrador, Reyes,

J.B.L., Barrera, Gutierrez David, Paredes, and Dizon, JJ.,
concur.

Judgment affirmed.

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