[ G.R. No. 19800. October 28, 1963 ]

[ G.R. No. 19800. October 28, 1963 ]

[ G.R. No. 19800. October 28, 1963 ]

ERNESTO R. RODRIGUEZ, JR., PETITIONER VS. CARLOS QUIRINO, RESPONDENT.

DECISION

REYES, J.B.L., J.:

Petition for quo warranto.

The petitioner, Ernesto Rodriguez, Jr., claims the right

to hold the position of Director of Public Libraries, and

assails the validity of the appointment of the respondent,

Carlos Quirino, to said office.

The verified pleadings and supporting documents show

that the petitioner was on 1 June 1961, appointed ad

interim to the position in question by then President

of the Philippines, Carlos P. Garcia. However, no commission or paper evidencing the appointment was ever

released. Nonetheless, in a letter dated 26 December 1961

to the Commission on Appointments, but received by it on

29 December 1961, the former President submitted for

confirmation numerous appointments, one of them being

for:

"Mr. Ernesto Rodriguez, Jr., as Director of Public Libraries,

date of appointment;, June 1, 1961."

At 5:20 p.m. of 30 December 1961, the petitioner was

notified by telegram that an ad interim appointment was

extended to him by the President, that the appointment

will be submitted to the Commission on Appointments in

due time, and congratulating him. The sender of the

telegram appears after the body of "the message as "SEC

GALLARES". On 5 January 1962, the petitioner took

an oath of office as ad interim appointee before a notary

public, whose commission admittedly has expired previously, but the oath does not appear to have been recorded in

the proper government office.

After the promulgation of the resolution by the Supreme

Court in the case of Aytona vs. Castillo, G.R. No. L-19313, 19 January 1962 (refusing to interfere with the President's

recalling Administrative Order No. 2), the Auditor General disauthorized the payment of the petitioner's salary.

Protesting the disauthorization, the petitioner wrote two

(2) letters, dated 1 and 2 February 1962, respectively, to

the Auditor General, furnishing copy to the Secretary of

Education, the Auditor, and the Cashier and Disbursing

Officer of the Bureau of Public Libraries, wherein he

explained that his appointment did not come within the

purview of the "midnight appointments", and that even

if it did, the fact was that he had not taken his oath of

office by reason of said appointment.

On 27 April 1962, the Commission on Appointments,

acting on former President Garcia's letter of 26 December

1961, confirmed the appointment of the petitioner. But

prior to the confirmation, on 10 April 1962, the petitioner

received a letter from the Office of the President informing him that the respondent, Carlos Quirino, had been

designated as Acting Director of Public Libraries by

President Diosdado Macapagal, and advising petitioner

to turn over the office to the said respondent. Over

petitioner's refusal to vacate the position, the respondent

assumed the duties of the position just the same, and so

the petitioner sought redress before this Court.

We find no merit in the petition.

In the first place, while the petitioner's ad interim appointment appears dated on the first of June 1961, it

was not communicated to him until the 30th of December

of that year, and nothing in the record indicates that its

existence was made known to any one before the last days

of 1961. It can be inferred from this secrecy that the

appointing power did not desire to make the selection final

and operative until the last day of President Garcia's term.

Consequently, this petitioner's appointment should be

regarded as part and parcel of the 300 and more "midnight" appointments referred to in our decision in Aytona

vs. Castillo, G. R. No. L-19313, and is covered by the rule

laid down therein.

A second and stronger reason, in the opinion of the

writer, militates against the petitioner's contention. It

is that his appointment ad interim violates the intent and

spirit of the Constitution. It must be remembered that

an ad interim appointment contradicts the theory of checks

and balances of the fundamental charter in that it permits

the Executive alone to make an appointment permanent

and effective in character without the previous scrutiny

and concurrence of the legislative power, acting through

the Commission on Appointments. While the power to

appoint ad interim when the legislature is not sitting has

been expressly granted by the Constitution [Article

VII, section 8 (4)], its exceptional character is nonetheless apparent, and the grant is justifiable only on the

theory of an existing clear and present urgency caused

by an impending obstruction or paralyzation of the functions assigned to the office to be filled if no immediate

appointment is made. To my knowledge, no other reason

has ever been attributed to such a grant of authority

to the Executive that permits him to dispense with the

previous concurrence of the Commission on Appointments,

reciprocally circumscribing the latter, if opposed to the

Executive's selection, to merely terminate the interim appointment, but without affecting its effectiveness or the

validity of any action taken by the appointee.

"If the text of the Constitution be taken literally, no municipal

officer could be appointed by the President alone to a vacancy not

originating in the recess of the Senate., It appears, however, that

under the sanction of the maxim, qui haeret in litera hearet in

cortice,' and of the 'argumentum ab inconvenienti of the power has

been understood to extend, in cases of necessity or urgency, to

vacancies happening to exist in the recess of the Senate. In the

case, for example, of an appointment to a vacancy by the President

and Senate of a person dead at the time, but not known to be so till

after the adjournment and dispersion of the Senate, it has been deemed

within the reason of the constitutional provision that the vacancy

should be filled by the President alone, the object of the provision

being to prevent a failure in the execution of the laws, which

without such a scope to the power must very inconveniently happen,

more especially in so extensive a country. Other cases of like

urgency may occur, such as an appointment by the President and

Senate rendered abortive by a refusal to accept it." (Madison's

Writings, Vol. 4, 351, cited in 2 Watson on the Constitution, 995)

(Italics supplied)

'Its sole purpose was to render it certain that at all times there

should be, whether the Senate was in session or not, an officer

for every office, entitled to discharge the duties thereof.

* * * * * * *

"The framers of the Constitution were providing against a real

danger to the public interest, not an imaginary one. They had

in mind a period of time during which it would be harmful if an

office were not filled; not a constructive, inferred or imputed recess,

as opposed to an actual one." (Senate Judiciary Committee Report,

cited in 2 Watson on the Constitution, 993-994) (Italics supplied)

It thus follows that in the absence of an exigency that

made the appointment urgent or peremptory, the latter

constitutes an abuse of power on the part of the Executive.

Of course, the determination of the need and urgency of

the interim appointment corresponds primarily to the

President making the appointment, and it is to be presumed

that an ad interim appointment was made because it was

needed; but in the petitioner's case now before us, the

fact that his appointment was made as early as 1 June

1961, but was neither made public nor even notified to

the appointee for the space of six months thereafter, is

conclusive proof that no paralyzation, or blocking, of

functions impended that could justify and call forth the

ad interim appointing power. This conclusion is made

more evident when account is taken of the fact that petitioner himself was already discharging the functions of

the office covered by the appointment by virtue of his

prior designation as Acting Director of Public Libraries.

What acts was the de jure Director of Public Libraries

urgently required to perform that the Acting Director

could not do, before the Legislature convened and the

Commission on Appointments was organized?

Much less can it be said that urgent necessity arose

on the last day of the Garcia administration that made

it impossible to postpone the choice to a later occasion,

since the three succeeding days (December 30 to January

1) were non-working days.

From all these circumstances, no conclusion is derivable

but that in the making of the petitioner's appointment the

purpose and spirit of the Constitution were violated; hence,

the appointment was ab initio void, and it could not be

validated by its subsequent confirmation.

There are other features in the case before us that

emphasize the irregularity of petitioner's position. Not

only was the notice to him given only after President

Macapagal had assumed office at noon of 30 December,

and petitioner's oath of office taken on 5 January 1962,

days after the new President had issued and published

his Administrative Order No. 2 recalling appointments

made by his predecessor under circumstances similar to

those surrounding petitioner's; but the latter's oath of

office was actually void because the notary public's commission had expired, and had not been renewed. And instead

of attempting to cure the invalidity by another qualifying

oath, petitioner Rodriguez, in his letters to the Auditor

General, copies of which were furnished to the Secretary

of Education and other officials, asserted and insisted that

he was occupying the office in an acting capacity, a

conduct that evidenced non-acceptance of the ad interim Appointment now being asserted.

In view of the foregoing, and no clear title having

been shown by petitioner Rodriguez to the office of Director of Libraries, the writ of quo warranto should be, and

is, denied. No costs.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador,

Paredes, Dizon, Regala, and Makalintal, JJ., concur.

Concepcion, J., concurs in the result.

CONCURRING

BARRERA, J.;

I concur in the conclusion that in the circumstances of

the case, petitioner Rodriguez has not shown a clear title

to the office of Director of Libraries, and hence, in the

denial of his petition for a writ of quo warranto.

I am not prepared, however, to go as far as to say that

this Court could inquire into the necessity of filling vacancies in the government service and decide, upon our

own determination of the presence or lack of that necessity,

on the legality of ad interim appointments of the executive

specially in the executive department. The citations from

Watson quoted in the majority opinion precisely state the

reason for the authority to make ad interim appointments to be the prevention of a failure in the execution of the

laws. And the execution of the laws is primarily the

responsibility of the executive. If ad interim appointments

may thus be judicially scrutinized, the executive may

find it necessary to resort to appointments in acting

capacity, a practice more susceptible to abuse and more

fraught with unwholesome effect.