EN BANC

[G.R. No. 90762. May 20, 1991.]

LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON , petitioner, vs.

LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity
as Chief Executive of the Province of Leyte and Head of
SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer
FLORENCIO LUNA , respondents.

Zozimo G. Alegre for petitioner.

The Provincial Attorney for respondents.

SYLLABUS

1. ADMINISTRATIVE LAW; VACANCY EXISTS WHERE THERE IS NO PERSON LAWFULLY

AUTHORIZED TO ASSUME AND EXERCISE AT PRESENT THE DUTIES OF THE OFFICE. —
The law on Public Of cers is clear on the matter. There is no vacancy whenever the of ce
is occupied by a legally quali ed incumbent. A sensu contrario, there is a vacancy when
there is no person lawfully authorized to assume and exercise at present the duties of the
office. (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public
Offices and Officers, at p. 61). cdasia

2. ID.; APPOINTMENT OF PETITIONER AS VICE-GOVERNOR EXTENDED BY THE

SECRETARY OF LOCAL GOVERNMENT HELD AS VALID. — The circumstances of the case
reveal that there is indeed a necessity for the appointment of an acting Vice-Governor. For
about two years after the governatorial elections, there had been no de jure permanent
Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet
been proclaimed due to a pending election case before the Commission on Elections. The
two-year interregnum which would result from the respondents' view of the law is
disfavored as it would cause disruptions and delays in the delivery of basic services to the
people and in the proper management of the affairs of the local government of Leyte.
De nitely, it is incomprehensible that to leave the situation without affording any remedy
was ever intended by the Local Government Code. Under the circumstances of this case
and considering the silence of the Local Government Code, the Court rules that, in order to
obviate the dilemma resulting from an interregnum created by the vacancy, the President,
acting through her alter ego, the Secretary of Local Government, may remedy the situation.
We declare valid the temporary appointment extended to the petitioner to act as the Vice-
Governor. The exigencies of public service demanded nothing less than the immediate
appointment of an acting Vice-Governor.
3. ID.; POWER OF THE PRESIDENT TO MAKE TEMPORARY APPOINTMENTS IN CERTAIN
PUBLIC OFFICES; SIMILARLY APPLIED IN THE CASE AT BAR. — It may be noted that under
Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is
empowered to make temporary appointments in certain public of ces, in case of any
vacancy that may occur. Albeit both laws deal only with the lling of vacancies in
appointive positions. However, in the absence of any contrary provision in the Local
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 Government Code and in the best interest of public service, we see no cogent reason why
the procedure thus outlined by the two laws may not be similarly applied in the present
case. The respondents contend that the provincial board is the correct appointing power.
This argument has no merit. As between the President who has supervision over local
governments as provided by law and the members of the board who are junior to the vice-
governor, we have no problem ruling in favor of the President, until the law provides
otherwise.
4. ID.; PUBLIC SERVICE; PRIMARY CONCERN OF THOSE IN THE GOVERNMENT; CASE AT
BAR. — Whether or not the absence of a Vice-Governor would maim or prejudice the
province of Leyte, is for higher of cials to decide or, in proper cases, for the judiciary to
adjudicate. As shown in this case where for about two years there was only an acting
Governor steering the leadership of the province of Leyte, the urgency of lling the vacancy
in the Of ce of the Vice-Governor to free the hands of the acting Governor to handle
provincial problems and to serve as the buffer in case something might happen to the
acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact
that nothing happened to acting Governor Petilla during the two-year period. The
contingency of having simultaneous vacancies in both of ces cannot just be set aside. It
was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to the
public is the primary concern of those in the government. It is a continuous duty unbridled
by any political considerations. The appointment of the petitioner, moreover, is in full
accord with the intent behind the Local Government Code. There is no question that
Section 49 in connection with Section 52 of the Local Government Code shows clearly the
intent to provide for continuity in the performance of the duties of the Vice-Governor.
5. ID.; LOCAL GOVERNMENT CODE; SANGGUNIANG PANLALAWIGAN MEMBER WHO
OBTAINED THE HIGHEST NUMBER OF VOTES MAY ASSUME THE OFFICE OF THE VICE-
GOVERNOR IN CASE OF TEMPORARY VACANCY. — The Local Government Code provides
for the mode of succession in case of a permanent vacancy, viz: Section 49: "In case a
permanent vacancy arises when a Vice-Governor assumes the Of ce of the Governor, . . .
refuses to assume of ce, fails to qualify, dies, is removed from of ce, voluntary resigns or
is otherwise permanently incapacitated to discharge the functions of his of ce, the
sangguniang panlalawigan . . . member who obtained the highest number of votes in the
election immediately preceding, . . . shall assume the of ce for the unexpired term of the
Vice-Governor . . .' By virtue of the surroundings circumstance of this case, the mode of
succession provided for permanent vacancies may likewise be observed in case of a
temporary vacancy in the same of ce. In this case, there was a need to ll the vacancy. The
petitioner is himself the member of the Sangguniang Panlalawigan who obtained the
highest number of votes. The Department Secretary acted correctly in extending the
temporary appointment. llcd

6. ID.; DE FACTO OFFICER; COMPENSATION RECEIVED BY PETITIONER AS ACTING VICE-

GOVERNOR; CONSIDERED PAYMENTS FOR ACTUAL SERVICES RENDERED. — There is no
denying that the petitioner assumed the Of ce of the Vice-Governor under color of a
known appointment. As revealed by the records, the petitioner was appointed by no less
than the alter ego of the President, the Secretary of Local Government, after which he took
his oath of of ce before Senator Alberto Romulo in the Of ce of Department of Local
Government Regional Director Res Salvatierra. Concededly, the appointment has the color
of validity. The respondents themselves acknowledged the validity of the petitioner's
appointment and dealt with him as such. It was only when the controversial Resolution No.
505 was passed by the same persons who recognized him as the acting Vice-Governor
that the validity of the appointment of the petitioner was made an issue and the
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 recognition withdrawn. The petitioner, for a long period of time, exercised the duties
attached to the Of ce of the Vice-Governor. He was acclaimed as such by the people of
Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic
considerations of justice, it would be highly iniquitous to now deny him the salary due him
for the services he actually rendered as the acting Vice-Governor of the province of Leyte.
(See Cantillo v. Arrieta, 61 SCRA 55 [1974]).

RESOLUTION

GUTIERREZ, JR. , J : p

This is a motion for reconsideration of the resolution of the Court dated August 28,1990
which initially denied the petition for certiorari and mandamus led by then Acting Vice-
Governor of Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated that Mr.
Menzon cannot successfully assert the right to be recognized as Acting Vice-Governor
and, therefore, his designation was invalid. In this motion, the primary issue is the right to
emoluments while actually discharging the duties of the office. LibLex

The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no
Governor had been proclaimed in the province of Leyte, the Secretary of Local Government
Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang
Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor
for the province of Leyte.
The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the
Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the
legality of the appointment of the petitioner to act as the Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that
since B.P. 337 has no provision relating to succession in the Of ce of the Vice-Governor in
case of a temporary vacancy, the appointment of the petitioner as the temporary Vice-
Governor is not necessary since the Vice-Governor who is temporarily performing the
functions of the Governor, could concurrently assume the functions of both offices. llcd

As a result of the foregoing communications between Tente U. Quintero and Jacinto T.

Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued
Resolution No. 505 where it held invalid the appointment of the petitioner as acting Vice-
Governor of Leyte. The pertinent portion of the resolution reads:
"WHEREAS, the circumstances obtaining at present in the Of ce of the Vice
Governor is that there is no permanent (sic) nor a vacancy in said of ce. The
Honorable Leopoldo E. Petilla assumed the Of ce of the Vice-Governor after he
took his oath of office to said position.

WHEREAS, it is the duty of the members of the Board not only to take cognizance
of the aforesaid of cial communication of the Undersecretary, Jacinto T. Rubillar,
Jr., but also to uphold the law.

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 WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by
the Honorable Rogelio L. Granados and the Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon
as Acting Vice-Governor of Leyte." (Rollo, p. 27)

The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo
Alegre, sought clari cation from Undersecretary Jacinto T. Rubillar, Jr. regarding the June
22, 1989 opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion. The
pertinent portion of the letter reads:
"This has reference to your letter dated July 10, 1989, requesting for clari cation
of our letter to Provincial Administrator Tente U. Quintero dated June 22, 1989,
which states in substance, that "there is no succession provided for in case of
temporary vacancy in the of ce of the vice-governor and that the designation of a
temporary vice-governor is not necessary.

We hold the view that the designation extended by the Secretary of Local
Government in favor of one of the Sangguniang Panlalawigan Members of Leyte
to temporarily discharge the powers and duties of the vice-governor during the
pendency of the electoral controversy in the Of ce of the Governor, does not
contradict the stand we have on the matter. The fact that the Sangguniang
Panlalawigan member was temporarily designated to perform the functions of
the vice-governor could not be considered that the Sangguniang member
succeeds to the of ce of the latter, for it is basic that designation is merely an
imposition of additional duties to be performed by the designee in addition to the
of cial functions attached to his of ce. Furthermore, the necessity of designating
an official to temporarily perform the functions of a particular public office, would
depend on the discretion of the appointing authority and the prevailing
circumstances in a given area and by taking into consideration the best interest of
public service.
On the basis of the foregoing and considering that the law is silent in case of
temporary vacancy, in the Of ce of the Vice-Governor, it is our view that the
peculiar situation in the Province of Leyte, where the electoral controversy in the
Of ce of the Governor has not yet been settled, calls for the designation of the
Sangguniang Member to act as vice-governor temporarily." (Rollo, p. 31)

In view of the clari catory letter of Undersecretary Rubillar, the Regional Director of the
Department of Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989,
wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo E Petilla, requesting
the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modi ed
accordingly. The letter states:
"In view thereof, please correct previous actions made by your of ce and those of
the Sangguniang Panlalawigan which may have tended to discredit the validity of
Atty. Aurelio Menzon's designation as acting vice-governor, including the payment
of his salary as Acting Vice-Governor, if he was deprived of such." (Rollo, p. 32)

On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla,
reiterating his earlier request.

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 Despite these several letters of request, the Acting Governor and the Sangguniang
Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the
petitioner the emoluments attached to the Office of Vice-Governor.
Thus, on November 12, 1989, the petitioner led before this Court a petition for certiorari
and mandamus. The petition sought the nulli cation of Resolution No. 505 and for the
payment of his salary for his services as the acting Vice-Governor of Leyte.Cdpr

In the meantime, however, the issue on the governorship of Leyte was settled and Adelina
Larrazabal was proclaimed the Governor of the province of Leyte.
During the pendency of the petition, more particularly on May 16, 1990, the provincial
treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as
acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services
rendered by the petitioner as acting Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution
requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte
all the emoluments and compensation which he received while acting as the Vice-Governor
of Leyte.
On September 21, 1990, the petitioner led a motion for reconsideration of our resolution.
The motion prayed that this Court uphold the petitioner's right to receive the salary and
emoluments attached to the office of the Vice-Governor while he was acting as such.
The petitioner interposes the following reason for the allowance of the motion for
reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES
RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES
OF GOOD FAITH, SIMPLE JUSTICE AND EQUITY.

The controversy basically revolves around two issues: 1) Whether or not there was a
vacancy?; and 2) Whether or not the Secretary of Local Government has the authority to
make temporary appointments?
The respondents argue that there exists no vacancy in the Of ce of the Vice-Governor
which requires the appointment of the petitioner. They further allege that if indeed there
was a need to appoint an acting Vice-Governor, the power to appoint is not vested in the
Secretary of Local Government. Absent any provision in the Local Government Code on the
mode of succession in case of a temporary vacancy in the Of ce of the Vice-Governor,
they claim that this constitutes an internal problem of the Sangguniang Panlalawigan and
was thus for it solely to resolve. cdphil

The arguments are of doubtful validity.

The law on Public Of cers is clear on the matter. There is no vacancy whenever the of ce
is occupied by a legally quali ed incumbent. A sensu contrario, there is a vacancy when
there is no person lawfully authorized to assume and exercise at present the duties of the
office. (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public
Offices and Officers, at p. 61).
Applying the de nition of vacancy to this case, it can be readily seen that the of ce of the
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 Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was
appointed Acting Governor. In the eyes of the law, the of ce to which he was elected was
left barren of a legally quali ed person to exercise the duties of the of ce of the Vice-
Governor.
There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to
the Of ce of the Governor, continued to simultaneously exercise the duties of the Vice-
Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to
discharge them. More so when the vacancy is for an extended period. Precisely, it was
Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in
the of ce of the Vice-Governor. The fact that the Secretary of Local Government was
prompted to appoint the petitioner shows the need to ll up the position during the period
it was vacant. The Department Secretary had the discretion to ascertain whether or not the
Provincial Governor should devote all his time to that particular of ce. Moreover, it is
doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a
higher authority. llcd

Disposing the issue of vacancy, we come to the second issue of whether or not the
Secretary of Local Government had the authority to designate the petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of succession in the event of a
temporary vacancy in the Of ce of the Vice-Governor. However, the silence of the law must
not be understood to convey that a remedy in law is wanting.
The circumstances of the case reveal that there is indeed a necessity for the appointment
of an acting Vice-Governor. For about two years after the governatorial elections, there had
been no de jure permanent Governor for the province of Leyte, Governor Adelina
Larrazabal, at that time, had not yet been proclaimed due to a pending election case before
the Commission on Elections.
The two-year interregnum which would result from the respondents' view of the law is
disfavored as it would cause disruptions and delays in the delivery of basic services to the
people and in the proper management of the affairs of the local government of Leyte.
De nitely, it is incomprehensible that to leave the situation without affording any remedy
was ever intended by the Local Government Code.
Under the circumstances of this case and considering the silence of the Local Government
Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum
created by the vacancy, the President, acting through her alter ego, the Secretary of Local
Government, may remedy the situation. We declare valid the temporary appointment
extended to the petitioner to act as the Vice-Governor. The exigencies of public service
demanded nothing less than the immediate appointment of an acting Vice-Governor. cdrep

The records show that it was primarily for this contingency that Undersecretary Jacinto
Rubillar corrected and reconsidered his previous position and acknowledged the need for
an acting Vice-Governor.
It may be noted that under Commonwealth Act No. 588 and the Revised Administrative
Code of 1987, the President is empowered to make temporary appointments in certain
public of ces, in case of any vacancy that may occur. Albeit both laws deal only with the
lling of vacancies in appointive positions. However, in the absence of any contrary
provision in the Local Government Code and in the best interest of public service, we see
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 no cogent reason why the procedure thus outlined by the two laws may not be similarly
applied in the present case. The respondents contend that the provincial board is the
correct appointing power. This argument has no merit. As between the President who has
supervision over local governments as provided by law and the members of the board who
are junior to the vice-governor, we have no problem ruling in favor of the President, until the
law provides otherwise.

A vacancy creates an anomalous situation and nds no approbation under the law for it
deprives the constituents of their right of representation and governance in their own local
government.
In a republican form of government, the majority rules through their chosen few, and if one
of them is incapacitated or absent, etc., the management of governmental affairs to that
extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of
basic services to the people of Leyte if the Governor or the Vice-Governor is missing.
Whether or not the absence of a Vice-Governor would maim or prejudice the province of
Leyte, is for higher of cials to decide or, in proper cases, for the judiciary to adjudicate. As
shown in this case where for about two years there was only an acting Governor steering
the leadership of the province of Leyte, the urgency of ling the vacancy in the Of ce of the
Vice-Governor to free the hands of the acting Governor to handle provincial problems and
to serve as the buffer in case something might happen to the acting Governor becomes
unquestionable. We do not have to dwell ourselves into the fact that nothing happened to
acting Governor Petilla during the two-year period. The contingency of having
simultaneous vacancies in both of ces cannot just be set aside. It was best for Leyte to
have a full- time Governor and an acting Vice-Governor. Service to the public is the primary
concern of those in the government. It is a continuous duty unbridled by any political
considerations. prcd

The appointment of the petitioner, moreover, is in full accord with the intent behind the
Local Government Code. There is no question that Section 49 in connection with Section
52 of the Local Government Code shows clearly the intent to provide for continuity in the
performance of the duties of the Vice-Governor.
The Local Government Code provides for the mode of succession in case of a permanent
vacancy, viz:
Section 49:
"In case a permanent vacancy arises when a Vice-Governor assumes the Of ce of
the Governor, . . . refuses to assume of ce, fails to qualify, dies, is removed from
of ce, voluntary resigns or is otherwise permanently incapacitated to discharge
the functions of his of ce, the sangguniang panlalawigan . . . member who
obtained the highest number of votes in the election immediately preceding, . . .
shall assume the office for the unexpired term of the Vice-Governor. . . ."

By virtue of the surroundings circumstance of this case, the mode of succession provided
for permanent vacancies may likewise be observed in case of a temporary vacancy in the
same of ce. In this case, there was a need to ll the vacancy. The petitioner is himself the
member of the Sangguniang Panlalawigan who obtained the highest number of votes. The
Department Secretary acted correctly in extending the temporary appointment.

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 In view of the foregoing, the petitioner's right to be paid the salary attached to the Of ce of
the Vice Governor is indubitable. The compensation, however, to be remunerated to the
petitioner, following the example in Commonwealth Act No. 588 and the Revised
Administrative Code, and pursuant to the proscription against double compensation must
only be such additional compensation as, with his existing salary, shall not exceed the
salary authorized by law for the Office of the Vice-Governor.
And nally, even granting that the President, acting through the Secretary of Local
Government, possesses no power to appoint the petitioner, at the very least, the petitioner
is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed the Of ce of the Vice-Governor under
color of a known appointment. As revealed by the records, the petitioner was appointed by
no less than the alter ego of the President, the Secretary of Local Government, after which
he took his oath of of ce before Senator Alberto Romulo in the Of ce of Department of
Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The respondents themselves
acknowledged the validity of the petitioner's appointment and dealt with him as such. It
was only when the controversial Resolution No. 505 was passed by the same persons who
recognized him as the acting Vice-Governor that the validity of the appointment of the
petitioner was made an issue and the recognition withdrawn.
The petitioner, for a long period of time, exercised the duties attached to the Of ce of the
Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of
public policy on which the de facto doctrine is based and basic considerations of justice, it
would be highly iniquitous to now deny him the salary due him for the services he actually
rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61
SCRA 55 [1974]).
WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional
compensation which the petitioner has received, in the amount exceeding the salary
authorized by law for the position of Senior Board Member, shall be considered as
payment for the actual services rendered as acting Vice-Governor and may be retained by
him. cdasia

SO ORDERED.
Fernan, C .J ., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ ., concur.

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