This is a petition for mandamus with damages, praying that respondent- officials be ordered to pay and/or cause the payment of petitioner's salary as Acting City Engineer of Cagayan de Oro City.
Respondents in their answers deny the right of petitioner to the salary claimed by him.
From the stipulation of facts and exhibits submitted for decision, pages 89- 98, record, it appears that:
On October 3, 1963 petitioner, Leo Y. Mabuhay, assumed the position of Acting City Engineer of Cagayan de Oro upon designation by President Diosdado Macapagal. (Exhibit 1.)
On October 12, 1963 the Court of First Instance, in Sp. Civil Case No. 2268 filed by Engineer Herminio Lucero disputing and denying petitioner's right to the position, restrained petitioner from exercising his functions as Acting City Engineer. On February 26, 1964 the case was dismissed.
On March 6, 1964 petitioner was again restrained from discharging his functions in Sp. Civil Case No. 2323 filed by the same Herminio Lucero. On March 29, 1964 the Court dismissed the case. (The Supreme Court affirmed the dismissal, G.R. No. L-23189.)
On May 29, 1964 petitioner assumed the same position upon another designation by President Macapagal. "On May 21, 1965 Congress adjourned its regular session without acting on petitioner's designation. This notwithstanding, he continued occupying his position and exercising its functions, powers and prerogatives from May 22,1965 until November 3,1965.
On November 3, 1965 one Procopio Resabal was appointed City Engineer of Cagayan de Oro, vice the petitioner.
In his petition it is prayed that petitioner be paid his salary as Acting City Engineer of Cagayan de Oro corresponding to the following periods, to wit:
a) From October 3, 1963 to
May 29, 1964........................... P 6,649.36
b) From May 22, 1965 to
November 3, 1965...................... 6,146.50 __________
total - P12,795.86
On April 29, 1965 petitioner submitted to respondent City Mayor of Cagayan de Oro his salary voucher as Acting City Engineer in the amount of P7,264.51 covering the period from October 3, 1963 to May 21, 1964. (Exhibit 2.) This claim was disallowed on August 4, 1965 by the Deputy Auditor General on the ground that:
(1) Assistant Civil Engineer Herminio Lucero actually discharged the duties of the position of Acting City Engineer of Capyan de Oro City and was paid the compensation appurtenant thereto during the period in question pursuant to the designation of the President ... and
(2) Even assuming arguendo that Engineer Lucero became an officer de facto after the President of the Philippines terminated his services on September 29, 1963 and had designated Engineer Mabuhay in his stead, it has been held that:
If payment of the salary or other compensation be made by the government, in good faith, to the officer de facto, while he is still in possession of the office, the government cannot be compelled to pay it a second time to the officer de jure when he has recovered the office, at least where the officer de facto held by color of title. (Machem, The Law of Offices and Officers, Sec. 332, p. 222.) (Exhibit 8.)
On August 10, 1965 petitioner appealed the ruling of the Deputy Auditor General to the President of the Philippines (Exhibit 11) but withdrew it on December 6, 1965. (Exhibit 13.)
Another claim for payment of his salary as Acting City Engineer was filed by petitioner in the amount of P1,137.91 covering the period from May 21, 1965 to June 30, 1965. (Exhibit 22.) On October 12, 1965 the Deputy Auditor General denied his claim for the reason that Congress having adjourned on May 20, 1965 without acting on petitioner's designation, and the same not having been extended by the President, petitioner had no legal right to continue discharging the duties of City Engineer of Cagayan de Oro and therefore could not be allowed to correct the salary pertaining to the position; and he could not be considered officer de facto as the Municipal Board had been questioning the legality of his continuance in office. (Exhibit 27.)
In view of the disallowance of his claim by the Deputy Auditor General, petitioner appealed to the Office of Executive Secretary alleging that as de facto Acting City Engineer of Cagayan de Oro he should be paid for services actually rendered during the period from May 21 to July 31, 1965. On January 20, 1966 this claim was denied by the Executive Secretary (Exhibit 32), by authority of the President, who found that the records of his case not only did not support, but also belied and demolished, petitioner's claim that he was a de facto Acting City Engineer or that the 'City Mayor of Cagayan de Oro and other local officials allowed him to continue discharging the duties of the office or considered him a de facto officer with the right to enjoy the privileges and salary attached to the position,' that his representation was specious self-serving and uncorroborated, and that his claim for salary 'must necessarily crumble for lack of a leg to stand on.'
The records, therefore, show that petitioner had made claims for payment of his salary corresponding to the following periods only, to wit:
a) from October 3, 1963 to May 2l, 1964
b) from May 2l, 1965 to July 3l, 1965;
that said claims were made to the proper administrative authorities and thru the proper administrative channels; and that after a careful consideration of said claims the same were disallowed, definitively and finally, by the Auditor General and the Executive Secretary, acting by authority of the President of the Philippines, for reasons already mentioned before. (Exhibits 8, 27, 32.) The findings and conclusions of the Executive Secretary likewise apply to the period after July 31, 1965 until November 3, 1965 when one Procopio Resabal was appointed City Engineer of Cagayan de Oro, vice the petitioner. (paragraph 10, Stipulation of Facts.)
The administrative decisions on the claims of petitioner being final they are a bar to, and cannot be circumvented by, the filing of the present action. (Mangonon L-14445, March 30, 1962; Sambo, L-12548, Feb. 27, 1959.) The matter of passing in audit a salary voucher is not a ministerial function; the Auditor General exercises discretion or a quasi-judicial power when he acts on whether to pass a salary voucher in audit or not (Gonzales, L- 20568, Dec. 28, 1964); hence his decisions cannot be controlled by mandamus, a remedy designed to compel performance of a ministerial duty which is clear and specific, not to control or review the normal exercise of judgment or discretion. (Llanto, 63 Of. Gaz. 5352.) And administrative decisions on matters within the executive jurisdiction can only be set aside on proof of gross abuse of discretion, fraud or error of law (Pindangan, L-14591, April 25, 1962; Lovina, L-17821, Nov. 29, 1963; Timbancaya, L-19100, Dec. 27, 1963), vices nowhere perceptible in the decisions of the Auditor General and the Executive Secretary on petitioner's claims; on the contrary, their decisions and the proceedings leading thereto evince good faith and an earnest effort to study and consider carefully petitioner's claims.
WHEREFORE, petition dismissed. Costs against petitioner.
