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VOL. 197, MAY 20, 1991 251

Menzon vs. Petilla

*
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.

Administrative Law; Public Officers; Local Government;

Appointments; In the absence of any contrary provision in the
Local Government Code, the provisions of Commonwealth Act No.
588 and the Revised Administrative Code of 1987, empowering the
President to make temporary appointments in case of any vacancy
in appointive positions, may, in the best interest of public service,
also be applied in case of vacancy in the position of Vice-Governor,
as in the case at bar.—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. 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
offices, in case of any vacancy that may occur. Albeit both laws
deal only with the filling 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
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.
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Y This argument has no merit. As between the President who has

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supervision over local governments as provided by law and the

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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.

_______________

* EN BANC.

252

252 SUPREME COURT REPORTS ANNOTATED

Menzon vs. Petilla

Same; Same; Same; Same; The mode of succession provided

for permanent vacancies, under Sec. 49 in connection with Sec. 52
of the Local Government Code, in the Office of Vice-Governor, may
likewise be observed in case of a temporary vacancy occurring in
the same office.—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. x x x 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
occurring in the same office. In this case, there was a need to fill
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.
Same; Same; Same; Same; Even granting that the President,
acting through the Secretary of Local Government, has no power to
appoint petitioner, at the very least, petitioner is a de facto officer
entitled to compensation.—And finally, 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 Office 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 office before Senator Alberto Romulo in the
Office of Department of Local Government Regional Director Res
Salvatierra. Concededly, the appointment has the color of validity.
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petitioner’s appointment and dealt with him as such. It was only

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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 Office 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])

253

VOL. 197, MAY 20, 1991 253

Menzon vs. Petilla

MOTION for reconsideration of the resolution of the Court.

The facts are stated in the resolution of the Court.

     Zozimo G. Alegre for petitioner.
     The Provincial Attorney for respondents.

RESOLUTION

GUTIERREZ, JR., J.:

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 filed 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.
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

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designated by Secretary Luis Santos to act as the Vice-

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to
Governor for the province of Leyte.
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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 Office 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
254

254 SUPREME COURT REPORTS ANNOTATED

Menzon vs. Petilla

Governor, could concurrently assume the functions of both

offices.
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 Office

of the Vice-Governor is that there is no permanent (sic) nor a
vacancy in said office. The Honorable Leopoldo E. Petilla assumed
the Office 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 official communication of the
Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the
law.
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)

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The petitioner, on July 10, 1989, through the acting LDP

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to
Regional Counsel, Atty. Zosimo Alegre, sought clarification
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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 clarification 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 office 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 Office of the Governor, does not
contradict the stand we have on the matter. The fact that the
Sangguniang Panlalawigan member was

255

VOL. 197, MAY 20, 1991 255

Menzon vs. Petilla

temporarily designated to perform the functions of the vice-

governor could not be considered that the Sangguniang member
succeeds to the office 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 official functions attached to his
office. 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 Office of the Vice-
Governor, it is our view that the peculiar situation in the Province
of Leyte, where the electoral controversy in the Office 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 clarificatory 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
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of Leyte, Leopoldo E. Petilla, requesting the latter that

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to
Resolution No. 505 of the Sangguniang Panlalawigan be
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modified accordingly. The letter states:

“In view thereof, please correct previous actions made by your

office 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.
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 filed before
this Court a petition for certiorari and mandamus. The
petition sought the nullification of Resolution No. 505 and
for the payment of his salary for his services as the acting
Vice-Governor of Leyte.
256

256 SUPREME COURT REPORTS ANNOTATED

Menzon vs. Petilla

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.

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On September 21, 1990, the petitioner filed a motion for

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reconsideration of our resolution. The motion prayed that
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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.

ISSUES: 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 Office 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 Office of the Vice-
257

VOL. 197, MAY 20, 1991 257

Menzon vs. Petilla

Governor, they claim that this constitutes an internal

problem of the Sangguniang Panlalawigan and was thus First issue:
for it solely to resolve.
Whether there is
The arguments are of doubtful validity. vacancy: YES
The law on Public Officers is clear on the matter. There There is vacancy
is no vacancy whenever the office is occupied by a legally
qualified 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 definition of vacancy to this case, it can be
readily seen that the office of the Vice-Governor was left
vacant when the duly elected Vice-Governor Leopoldo
Petilla was appointed Acting Governor. In the eyes of the
law, the office to which he was elected was left barren of a

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legally qualified person to exercise the duties of the office of

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to
the Vice-Governor.
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There is no satisfactory showing that Leopoldo Petilla,
notwithstanding his succession to the Office 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 office of the Vice-Governor. The fact that the
Secretary of Local Government was prompted to appoint
the petitioner shows the need to fill 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
office. Moreover, it is doubtful if the Provincial Board,
unilaterally acting, may revoke an appointment made by a
higher authority.
Disposing the issue of vacancy, we come to the second Second issue:
issue of whether or not the Secretary of Local Government
had the authority to designate the petitioner. Whether Sec of
We hold in the affirmative. Local Government
had the authority
The Local Government Code is silent on the mode of to designate the
succession in the event of a temporary vacancy in the Office petitioner: YES
of the Vice-Governor. However, the silence of the law must
not be understood to convey that a remedy in law is
wanting.
258

258 SUPREME COURT REPORTS ANNOTATED

Menzon vs. Petilla

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. Definitely, it is
incomprehensible that to leave the situation without

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affording any remedy was ever intended by the Local

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to
Government Code.
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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 Secretary of
interregnum created by the vacancy, the President, acting Local
through her alter ego, the Secretary of Local Government, Government as
may remedy the situation. We declare valid the temporary alter ego of the
President
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.
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 President's
and the Revised Administrative Code of 1987, the power to make
President is empowered to make temporary appointments temporary
in certain public offices, in case of any vacancy that may appointments
occur. Albeit both laws deal only with the filling 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 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
259

VOL. 197, MAY 20, 1991 259

Menzon vs. Petilla

vice-governor, we have no problem ruling in favor of the

President, until the law provides otherwise.
A vacancy creates an anomalous situation and finds 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
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delivery of basic services to the people of Leyte if the

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Governor or the Vice-Governor is missing.
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Whether or not the absence of a Vice-Governor would
main or prejudice the province of Leyte, is for higher
officials 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 filling the vacancy
in the Office 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
offices 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 The need for
accord with the intent behind the Local Government Code. continuity in the
There is no question that Section 49 in connection with performance of
the duties of the
Section 52 of the Local Government Code shows clearly the Vice-Governor
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 Office of the Governor, x x x refuses to assume office,
fails to

260

260 SUPREME COURT REPORTS ANNOTATED

Menzon vs. Petilla

qualify, dies, is removed from office, voluntary resigns or is

otherwise permanently incapacitated to discharge the functions of
his office, the sangguniang panlalawigan x x x member who
obtained the highest number of votes in the election immediately
preceding, x x x 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 office. In this case, there was a need to fill the
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vacancy. The petitioner is himself the member of the

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Sangguniang Panlalawigan who obtained the highest
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ac ac
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number of votes. The Department Secretary acted correctly
in extending the temporary appointment.
In view of the foregoing, the petitioner’s right to be paid
the salary attached to the Office 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 finally, 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
Office 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 office before Senator Alberto Romulo in the Office 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
261

VOL. 197, MAY 20, 1991 261

Menzon vs. Petilla

an issue and the recognition withdrawn.

The petitioner, for a long period of time, exercised the
duties attached to the Office 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

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of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA

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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.
SO ORDERED.

          Fernan (C.J.), Narvasa, Melencio-Herrera, Cruz,

Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.

Motion for reconsideration granted.

Notes.—View that the cited clause of the Constitution

permitting an elective official to be appointed member of
the President’s cabinet, was not approved by the people. (
Punsalan vs. Mendoza, 140 SCRA 153.)
Person who assumed office under color of a known
appointment or election, and whose appointment lacks the
required approval by the President is considered a de facto
officer. (Aparri vs. Court of Appeals, 127 SCRA 231.)

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262

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