FIRST DIVISION

[G.R. No. L-14569. November 23, 1960.]

BENITO CODILLA, ET AL., petitioners, vs. JOSE L. MARTINEZ, ETC., ET
AL., respondents.
Teodoro V. Nano for appellants.
The Provincial Fiscal of Davao for appellee.

SYLLABUS

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 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 f the authority vested by law in the
officer 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.)

DECISION

BAUTISTA ANGELO , J : p

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 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
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 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 of ce on January 25, 1956,
his rst of cial act being to separate from the service the petitioners as policemen of
the municipality. Petitioners immediately led their protest invoking the right to
continue in of ce 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 quali ed by taking his oath of of ce. 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 of ce 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 led a petition for
mandamus before the Court of First Instance of Davao against Acting Mayor Martinez
incumbent Mayor Baloyo alleging that their separation from the service as municipal
policemen was illegal because being civil service employees their employment cannot
terminate 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. 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
temporary capacity, because they are not civil service eligibles, the same were valid
only for three months and so their continuance in of ce 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 rati ed the same by his subsequent of cial 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
of cial who assumed of ce 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
w a s 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 of cer whose acts may be given validity in the eye of law. Thus, the trial
court said: "Although his designation was irregular, still he was acting under a color of
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 authority, as distinguished from a usurper who is 'one who has neither title nor color of
right to an of ce.' . . . The acts of Jose L. Martinez are therefore of cial acts of a de
facto of cer. If they are made within the scope of the authority vested by law in the
of ce 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 how has the reputation or appearance of being the officer he assumed 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 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. (d) 683." (McQuillin, Municipal Corporations, supra footnote No.
11, p. 383.)
Another factor that may be invoked in favor of the validity of the of cial actuation
of Acting Mayor Martinez is the fact that all his of cial acts done under his designation
were subsequently endorsed and rati ed by the incumbent mayor when he returned to
of ce. This rati cation served to cure any legal in rmity 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 of ce in the government service. While it may be gleaned
from the surrounding circumstances that the hand of politics has intervened in the
separation 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 terminability at the pleasure of the
appointing power." 1 We also postulated that "The replacement of non-eligibles by non-
eligibles is lawful and under and pursuant to Section 682 of the Revised Administrative
Code." 2 Petitioners cannot, therefore, invoke in their favor the provisions of Republic
Act No. 557 because this Act only guarantees the tenure of of ce 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 af rmed, with out pronouncement as
to costs.
Parás, C.J., Bengzon, Padilla, Labrador, Reyes, J.B.L., Barrera, Gutierrez David,
Paredes, and Dizon, JJ., concur.

Footnotes

1. Cuadra vs. Cordova, 103 Phil., 391; 54 Off. Gaz., (35) 8063.
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 2. Orais, et al. vs. Ribo, et al., 93 Phil., 985; 49 Off. Gaz., [12] 5386.

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