Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14908 October 31, 1963
SINFORIANO V. URGELIO, JOSE V. ENCABO, and JORGE M. VILLARIN, petitioners, JOSE V. ENCABO and JORGE M. VILLARIN, petitioners-appellants,
vs.
SERGIO OSMEÑA, JR., THE MUNICIPAL BOARD OF CEBU CITY, THE CITY OF CEBU, RAMON DUTERTE, CASIMERO V. MADARANG, CARLOS J. GUIZON, OSMUNDO G. PAMA, FLORENCIO S. UROT, CEFERINA U. DEL ROSARIO, GENEROSO JACA, CECILIO DE LA VICTORIA, JOAQUIN L. PANIS, PEDRO B. CLAVANO, THE CITY TREASURER, and THE CITY AUDITOR OF CEBU CITY, respondents-appellees.
Fernando S. Ruiz for petitioners-appellants.
The City Fiscal of Cebu and Quirico del Mar for respondents-appellees.
MAKALINTAL, J.:
This is an appeal from the decision of the Court of First Instance of Cebu dated 4 December 1957, dismissing the petition for mandamus filed by herein appellants.
The facts are stipulated. The individual respondents mentioned names in the caption were officials of the city government of Cebu who assumed their respective positions on January 1, 1956. Sergio Osmeña, Jr. was the City Mayor, Ramon Duterte was the Vice-Mayor and the rest, City Councilors. Sinforiano V. Urgelio (one of petitioners but apparently not appellant here) was a laborer in the office of the City Mayor since June, 1946 with compensation at the rate of P4.70 daily. Appelants Jose V. Encabo and Jorge Villarin were also employed in the same office as office helper and laborer, with compensation at the rates of P4.80 and P4.50 daily, respectively. Encabo had been there since May, 1948; Villarin since April, 1954. All three were performing clerical duties and were members of the Government Service Insurance System, showing the permanent character of their tenures.
On 5 January 1956 the Municipal Board of the City of Cebu passed a resolution creating thirty five (35) new positions in the office of the City Mayor, several of which were for laborers, janitors and informers. A little over a month later, or on 10 February 1956, the Municipal Board passed Ordinance No. 192 abolishing a number of positions in the same office, among them those held by petitioners. On 23 February 1956 the Mayor sent them written notices of the termination of their services, effective at the close of business hours on the following March 15, in view of the abolition of their positions under Ordinance No. 192. They protested such termination in letters to the Commissioner of the Civil Service and the Executive Secretary, dated 6 August and 10 October 1956, respectively. No replies were received by them; and so on 5 December 1956 they commenced the instant proceeding in the Court of First Instance of Cebu, praying that the abolition of their positions be declared void and without force and effect; that they be reinstated; that theybe paid their salaries from the date of their separation; and that respondentsbe ordered to pay moral and exemplary damages as well as attorney's fees. By amended petition dated 27 June 1957, the City of Cebu was included as party-respondent.
The main ground alleged in the petition and urged appellants in this appeal is that the abolition of their positions was done in bad faith and in violation of the law and the Constitution. There is no question that the municipal board of the City of Cebu had the power to legislate in regard to fixing the number and salaries of officials and employees not provided for in the City Charter (See. 17, Commonwealth Act No. 58). Appellants' positions notbeing among those enumerated in the charter, they were subject to the power thus granted. The exercise of such power, however, has a recognized exception,namely, that the abolition of an office or position must be in good faith and not characterized by fraud and improper motives. It cannot be resorted to as ameans to remove the incumbents in violation of the civil service law.1
The present case falls within the exception Ordinance No.192 was obstensiblyenacted for reasons of economy and efficiency. But economy may be ruled out,because not only had 35 new positions been created a litle over a month priorto the enactment of the said ordinance, but after appellants' position were abolished sixteen additional ones were again created and increases in salariesof employees in the Mayor's office were provided for. If the intension were not really to ease out petitioners from their positions they could have beenaccomodated in the new items thus created. It can not be said that their services were no longer needed, because as it appears in the stipulation offacts submitted to the court a quo, the same duties they had been performingprior to their situation continued to be performed by other employes.
The same ordinance No. 192 has been the subject of another case similar to the one at bar and decided by this Court on 24 September 1958 (Concepcion,Briones, et al. v. Sergio Osmeña, Jr., et al., G.R. No. L-12536). In that decision we found that "the reasons given for the abolition of the positionof the appelles, in violation of the security of Civil Service tenure asprovided by the Constitution."
IN THE VIEW OF THE FOREGOING, the judgment appeal from is reversed and the writ prayer for is granted. The abolition of appellant's position is declared null and void respondent City of Cebu is ordered to reinstate them therein or to equivalent positions; and to pay their separation, less whatever they have earned from other employment in the interim, to be determined upon proper hearing before the court a quo. Respondents are also ordered to pay appellants the sum of P1,000.00 as attorney's fees, plus costs.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,Barrera, Paredes, Dizon and Regala, JJ., concur.
Footnotes
1 The statutes relating to civil service have for their primary purpose economy and efficiency in the public service. The secondary purpose is permanent tenure in office for those employed in such service. The power to create a position in the classified civil service includes the power to abolish such position. Therefore any position in the classified civil servicemay be abolish by the employing officer if such act is done in good faith solely for purposes of economy and more efficient public service. In state ex rel. Stine v. McCaw, Chief of Div. of aid for aged, 137 Ohio St.13, 27N.E. 2d 488,489, Mathias, J., states the law as follows: " An order abolishinga civil service position is ineffective where a new appointee is named to perform the same duties; but where there is a substantial merger of two positions for the purpose of economy with no proof of ulterior motive or purpose on the part of the employing officer, or discrimination upon political religious or other improper grounds, a writ of mandamus will not be granted to require reinstatement of an employee discharged as a result of such merger.State ex rel. Stoer v. Raschig, 49 N. E. 2d 56. In the last analysis of the legislature to truncate the incumbency of one who has been appointed for a fixed term will be found on the purpose for which it was done. On the otherbasis can the various concepts of legislative power under constitutionalprovisions such as ours be reconciled or fitted together with the power giventhe executive. We shall endeavor to illustrate this thesis by what follows:
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If it abolish one office and put it its place another by the same or a different name but with substantially the same duties, it will be considered a device to unseat the the incumbents. If on the other hand it abolishes two or more offices with substantially the same duties or different duties andbonafide combines three duties under an office with the same name as one of the abolish offices or under a different name or abolishes an office and distributes its duties among ther offices for reasons of economy or genuine reorganization, the abolition is permissible.
If the newly created office has substantially new, different or additional functions, duties or powers, so that it may be said in fact to create an office different from the one abolished, even though it embraces all or some of the duties of the old office it will be considered as an abolition of one office and the creation of a new or different one. The same is true if one office is abolished and its duties, for reasons of economy are given to anexisting officer or office.
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But if the functions, duties and powers are substantially those of the office abolished, the abolition will be considered merely colorable and the pretendednew office be considered in actuality a continuation of the old one.Consequently, when one office is purported to be abolished and a new office purported to be set up by the courts will examine the entire transaction for purpose of motive. See Cusack v. Board of Education, supra; State ex rel. Birdsey v. Baldwin, supra; Mc Chesney v. Trenton, supra. If the function, duties or powers are substantially the same it will be a stong indication thatthe purpose was to abolish the officer and not the office, but where offices are abolished and new ones set up in in a general consolidation genuinely based on reasons of economy or efficiency, the court, if convinced that the purpose was that, will not interfere even though officers in the affectedreorganization evolve with some offices whose functions, duties, or powers aresubstantially like those which are abolished. It is essentially a matter of good faith. State ex rel. Hammond v. Maxfield, 132 P. 2d 660.
A municipal office is not property in the constitutional sense, and the legislature may abolish an office during the term for which the incumbent was elected or appointed Without violating any of his constitutional rights. So also an office created by municipal ordinance may be abolished by ordinance,and the incumbent ceases to be an officer. Even when an officer by reason ofhaving been appointed for a definite term, or by special statutory provision,cannot be lawfully removed except for cause after a full hearing, his officemay be summarily be abolished whenever the proper municipal authorities deemit advisable. In such case, however, the office must be abolished in good faith, and if immediately after the office is abolished another office is created with substantially the same duties and a different individual is appointed, or if it is otherwise appears that the office was abolished for personal or political reasons, the courts will interfere. 19 R. C. L. 936.
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