VIII. OTHER IMPORTANT POWERS OF MUNICIPAL CORPORATIONS

A.To appropriate and spend money i. Natureii. Limitation1. Republic v. Montano, 21 SCRA 609

EN BANC[G.R. No. L-28055. October 30, 1967.]REPUBLIC OF THE PHILIPPINES,petitioner,vs.PROVINCIAL GOVERNOR DELFIN MONTANO, ET AL.,respondents.TheSolicitor General A.P. BarredoandSolicitor R.L. Pronove, Jr.for petitioner.Abraham F. Sarmientofor respondents.SYLLABUS1.PROVINCES; PROVINCIAL GOVERNMENTS, POWERS OF; APPROPRIATION OF PUBLIC FUNDS FOR PUBLIC WELFARE; ITS HISTORY. The power of provincial governments to appropriate money for the welfare of their inhabitants is not at all of recent vintage. As early as 1906, this was granted to provincial boards by Act 1548 which amended section 13 of the Organic Act of the Provinces by providing that the provincial boards of provinces shall have the power "(nn). To appropriate moneys from [their] funds, except those the use of which is otherwise specifically fixed by law, for other purposes having in view the general welfare of the province and its inhabitants." Similarly, the Administrative Code of 1916, reenacting with modification this provision of the Organic Act of the Provinces, provided that "Upon approval of the Department Head of the particular resolution by which such action shall be taken, the provincial boards of the respective provinces shall have authority (a) To appropriate money for purposes not specified by law, having in view the general welfare of the province and its inhabitants ..." This provision was in turn reenacted in section 2106(a) of the Revised Administrative Code. In truth, section 3(a) of theLocal Autonomy Actis nothing but a copy of section 2106(a) of the Revised Administrative Code, with the only difference that prior approval of the Department Head has been dispensed with, in line with the legislative policy of granting greater autonomy to local governments. In a sense, the elimination of the requisite approval is a return to the original provision of the old Organic Act of the Provinces. It is in this sense that section 3 of theLocal Autonomy Actis entitled "Additional powers of provincial boards ...," and rightly so, for it removed the fetters that once bound local governments to the national government.2.ID.; ID.; CONSTITUTIONAL PROVISIONS ON LOCAL GOVERNMENT SHOULD BE LIBERALLY CONSTRUED IN THEIR FAVOR. The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.3.ID.; ID.; ID.; NECESSARY AND FAIR IMPLICATION OR INCIDENT TO POWERS CONFERRED OR ESSENTIAL THERETO. It is argued that this clause of the Constitution, which had no counterpart in its predecessor Constitution, introduced a new concept of home rule, being in effect a direct grant of the police power to all municipalities. We find no merit in this contention of the defendant. The quoted provision of the Constitution on its face does not purport to be a grant of general police powers to al municipalities, its plain language is not susceptible of being so construed, the proceedings of the Constitutional Convention referred to do not indicate that it was so intended, and during the five years since its adoption our courts have never so interpreted it. On the contrary, it is well settled in this state that a municipality has only those powers granted to it by statute, albeit by virtue of the constitutional provision here under discussion those powers are to be liberally construed in favor of the municipality and express grants of power are deemed to include `those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto.'4.ID.; ID.; LOCAL GOVERNMENTS HAVE NO INHERENT BUT ENUMERATED POWERS. Provincial governments, like municipal corporations, are governments of enumerated powers. The assumption, although historically inaccurate, is that municipal corporations are mere creatures of the state with no inherent powers of their own. This same assumption underlies the grant of autonomy to local governments, for implicit in the grant is precisely the recognition that they exercise only delegated powers which should be enlarged and, in case of fair and reasonable doubt," should be resolved in their favor.5.STATUTORY CONSTRUCTION;LOCAL AUTONOMY ACT; GRANT OF POWERS TO LOCAL GOVERNMENTS SHOULD BE CONSTRUED STRICTLY AGAINST THEM. Section 12(1) (2) of theLocal Autonomy Act, which is reproduced in section 23 of the Decentralization Act of 1967, did not alter the basic nature of municipal governments as governments of limited power. What it changed was the prevailing rule at the time of its enactment that the grant of powers to municipal corporations must be strictly construed against them. As a rule of interpretation it does not purport to supply power where none exists, not even by necessary implication.6.PROVINCES; PROVINCIAL GOVERNMENTS, POWERS OF; POWER TO CREATE PROVINCIAL POLICE FORCE NOT CONFERRED BY LAW. The power to create a provincial police force appears to be denied to provincial governments. Thus, whereas section 2105 (c) of the Revised Administrative Code gives them the power to appropriate money "for the organization, equipment and maintenance of a police force in any municipality or municipal district of the province where local funds are insufficient ..bear such expenses," nothing is said of their power to provide for the organization of their own police. Again, while cities and municipalities are authorized to provide uniforms for their police forces no such authority is conferred on provinces. This power given to cities and municipalities is in addition to their power "to appropriate money for purposes not specified by law, having in view the general welfare of the city and its inhabitants," undoubtedly because the former cannot be fairly embraced in the latter. Section 2081 cannot be invoked because that provision authorizes the appointment of subordinate employees in existing offices, not the creation of the offices themselves.7.PUBLIC OFFICE; NATIONAL AND MUNICIPAL POLICE FORCES ARE STATUTORY CREATURES; PROVINCIAL POLICE FORCE INEXISTENT. Municipal offices can be created only by legislative authority. This creative act must be either immediate or delegated. In the Philippines, national and local police bodies are directly created by statute. Thus the Philippine Constabulary was constituted as a national police force by virtue of a statute. So is the organization of police force in cities and municipalities specifically provided for by an Act of Congress. Even the formation of posses comitatus in towns to assist the police in the apprehension of criminals is a matter of express statutory enactment. Thus there is a national police force and there are city and municipal forces, but the remarkable thing is that there is no provision for provincial police forces.8.PROVINCES; PROVINCIAL POLICE FORCES, CREATION OF; STATUTORY BASIS; REASONS. This lack of statutory basis for the creation of provincial police forces stands in sharp contrast to the proliferation of statutory materials on municipal and city police forces. Not that peace and order are less a responsibility of the provinces. The reason is simply that the Governors are already clothed with ample powers and resources. They can temporarily transfer policemen from one municipality to another when public interest so requires. They can call on the Philippine Constabulary or even on the Armed Forces of the Philippines to quell any "disorder, riot, lawless violence or rebellious or seditious conspiracy or to apprehend violators of law."9.ID.; ID.; ID.; CREATION OF PROVINCIAL POLICE FORCES RESERVED TO LEGISLATURE AND EXCLUDED FROM ACTIONS BY LOCAL GOVERNMENTS. The legislature intended to reserve for itself the field of legislation on this matter and thereby exclude from it like actions by local governments. Precedents in support of this view are not wanting. It was held that where the charter authorizes the appointment of a marshal and in case of "special emergencies," of a special police, the city could not create an office of a night watchman with powers to arrest persons violating the laws and ordinances. Not even the plea that the office was necessary for the preservation of peace and order justified the creation of the office. Similarly, it was held that a statute creating the office of the "Chief of Police" did not authorize a city to appoint a day chief of police and a night chief of police and that an ordinance so providing was invalid.10.ID.; PROVINCIAL GOVERNMENT, POWERS OF; CREATION OF PROVINCIAL POLICE FORCES CANNOT BE INFERRED. The power of provinces to create provincial police forces cannot be inferred. Neither can the existence of such bodies be implied from the fact that in prescribing the qualifications of members of local police agencies, section 9 of the Police Act of 1966 mentions "provincial police agencies" and the like. The reference to such bodies is a misnomer as is evident from the discussion on the bill which became the Police Act.11.ID.; ID.; PROVINCIAL POLICE FORCE REFERS TO PROVINCIAL GUARDS. The term is used in other legislation before the enactment of the Police Act of 1966 and it has always been understood to refer to provincial guards assigned to provincial jails. It is used in Commonwealth Act 343 which constituted the Philippine Constabulary as a national police force and returned to the control of the Governors the "provincial ... police bodies or provincial guards who earlier, had been organized into a state police, along with the police forces of the cities and municipalities President Quezon's Executive Order 153 as well as Executive order 175, issued to implement C.A. 343, likewise spoke of "local police bodies in each province" and "provincial police service" but that the term meant no more than provincial guards is evident from the text thereof.12.MUNICIPAL CORPORATIONS; PROVINCIAL GOVERNMENT; RESOLUTION NO. 27 DATED JANUARY 27, 1964 OF THE PROVINCIAL BOARD OF CAVITE, AND ADMINISTRATIVE ORDER No. 65-1 CREATING THE DEPARTMENT OF PUBLIC SAFETY; LEGALITY. As the provincial government has no power by necessary implication from certain express powers granted to it to create provincial police offices, Resolution No. 27 of the Provincial Board of Cavite and Administrative Order No. 65-1 of the Provincial Governor thereof, creating the Department of Public Safety "to be manned by trained technicians and investigators who shall be agents of a person in authority" are declared void, the Cavite Department of Public Safety is ordered dissolved, and the respondent public safety officers are ousted from their positions.D E C I S I O NCASTRO,Jp:The parties are agreed that the Cavite Department of Public Safety possesses the nature, attributes, powers and functions of a police force. The issue here is whether a provincial government has the power, by necessary implication from certain express powers granted to it, to create a provincial police force, the parties admitting that there is no express or explicit statutory grant of power. Neither the need for such a body nor the wisdom of its creation is in question. The issue is simply one of implied power.In 1964 the provincial board of Cavite passed Resolution 27 creating a Department of Public Safety "to be manned by trained technicians and investigators who shall be agents of a person in authority (the Provincial Governor)" and authorizing the appropriation of funds for its operation. The resolution did not define the powers and functions of the department. This was done by means of an administrative order of the respondent Governor which is hereunder quoted in full:"PROVINCIAL ADMINISTRATIVE ORDER 65-1"DEFINING THE GENERAL PURPOSES, POWERS AND FUNCTIONS OF THE CAVITE DEPARTMENT OF PUBLIC SAFETY"To insure the effective implementation of the Provincial Board Resolution No 27, series of 1964, creating the Cavite Department of Public Safety as the main law-enforcement arm of the province, this Administrative Order is hereby promulgated."SECTION 1.The Agency. The agency shall be officially known as the CAVITE DEPARTMENT OF PUBLIC SAFETY (CDPS) or, in Pilipino, KAGAWARAN NG KALIGTASAN BAYAN; and its members, who are agents of the Provincial Governor to be known as Public Safety Officers."SEC 2.General Purposes and Functions. To better insure the safety of residents of Cavite and the well-being of both public and private interests therein, the Cavite Department of Public Safety is established with the following purposes and functions:"a.Technical Assistance to Local Police Units. The CDPS shall make readily available to the different local police forces technical assistance availing of modern and scientific methods of crime detection."b.Elevation of Standard of Police Performance. It shall aspire to elevate the standard of police performance, not only by the quality of the services it would render, but also by assisting in the implementation of a police training program for local police forces."c.Focus on Crimes against Persons and Property. In order to make the operation of the Agency more effective, considering that the main problem in the maintenance of peace and order involves the security of persons and property, its law-enforcement activities shall more or less be confined to the investigation and assistance in the prosecution of crimes against persons and property and violation of traffic laws."d.Central Record System. The CDPS shall establish and maintain a central provincial record of personal and criminal identification and court and police documents. It shall also make available to municipalities that have enacted ordinances requiring the finger-printing and/or photographing of all able-bodied citizens the personnel, materials and equipment needed for said purpose."e.Civil Defense. The CDPS shall also constitute the main civil defense arm in the province, responsible to the Governor, and shall undertake such measures as would be required in emergencies in coordination with the National Civil Defense Administration."f.Loose Firearms. The CDPS shall also give emphasis on the detection and collection of loose firearms and the collection and control of `misused' weapons, the root causes of most peace and order problems."g.Fire Protection. The CDPS shall be responsible for the coordinated utilization and maintenance of all fire-fighting equipment within this jurisdiction."h.Search and Rescue. In times of disaster and distress the CDPS shall conduct search and rescue operations."i.Civil Action Projects. The Public Safety Officers, whenever circumstances would allow, shall also undertake such civil action projects as the Provincial Governor may assign."j.Public Safety and Preventive Measures. The CDPS shall also undertake from time to time other public safety measures assigned to it by the Provincial Governor, including accident prevention, elimination of fire and traffic hazards, mob control, and the enforcement of safety measures requirements in resorts, recreation areas and other public places."SEC. 3.Organizational Setup, Central Office and Sector Stations. The organizational setup of the CDPS shall be made in a manner that would make its services readily available and accessible to the local police forces and residents of the province."It shall maintain its central office in Trece Martires City and establish at least three (3) sector stations in strategically located places in the province."SEC. 4.Scope of Activities and Relations with Other Law-Enforcement Agencies. The CDPS has been created, not for the purpose of usurping the functions of local law-enforcement agencies, but to assist and to make available to city and municipal police units its facilities and the benefit of the intensive training of its members in police science and, if possible, to `contaminate' other peace officers with their technical know-how."THE CDPS shall also establish liaison with the NBI and the PC in order to achieve their common goal of combating crime effectively."Public Safety Officers may only involve themselves in a case already being handled by other police agencies (a) upon request of the mayor or chief of police concerned; (b) when the culprit flees outside the boundary of the municipality where the crime was committed; or (c) upon direction of the Provincial Governor."Done in the City of Trece Martires, this 1st day of March, in the year of our Lord, Nineteen hundred and sixty-five."The organizational structure of the department was not outlined or delineated, obviously because this was already done in the budget of the province for 1963-1964.Thereafter the respondent Governor appointed the other respondents as public safety officers, making them his special agents.On September 20, 1967 the Solicitor General, in behalf of the Government, filed a petition forquo warranto, assailing the legality of the Department of Public Safety on the ground that the province of Cavite has no authority to create public offices with police functions. It is alleged that despite the demand of the President of the Philippines the respondent Governor and the members of the provincial board of Cavite have refused to dissolve and disband the public safety department, and that the exercise of police functions by the agency "affects the lives and liberties" of the people.On September 25, 1967 this Court issued a temporary restraining order enjoining the respondent Governor from carrying out the disputed resolution and the rest of the respondents from discharging the functions of public safety officers.In their answer, the respondents maintain that the power of the province to create the agency is necessarily implied from section 3 of theLocal Autonomy Actof 19591especially the portion thereof which provides that "Provincial Boards of the respective provinces shall have authority (a) To appropriate money for purposes not specified by law, having in view the general welfare of the province and the inhabitants." In support of the existence of such implied power, they invoke section 12 of the same Act which reads as follows:"Rules for the interpretation of theLocal Autonomy Act. "1.Implied power of a province, a city or municipality shall be liberally construed in its favor. Any fair and reasonable doubt as to the existence of the power should be interpreted in favor of the local government and it shall be presumed to exist."2.The general welfare clause shall be liberally interpreted in case of doubt so as to give more power to local governments in promoting the economic condition, social welfare and material progress of the people in the community."They further contend that the power to create the police agency is recognized in the following provisions of the Police Act of 1966.2"SEC. 9.General Qualifications for Appointment. No person shall be appointed to a local police agency unless he possesses the following qualifications:"xxx xxx xxx"(4)For appointment in the municipalities he must have at least completed high school, and forprovincesand cities, at least completed two years college;"xxx xxx xxx"(8)He must be at least five feet, five inches in height in the case ofprovincesand chartered cities and five feet four inches in the case of municipalities; and"xxx xxx xxx"Persons who at the time of the approval of this Act have rendered at least five years of satisfactory service in aprovincial, city or municipal police agency although they have not qualified in an appropriate civil service examination are considered as civil service eligible for the purpose of this Act."The power of provincial governments to appropriate money for the welfare of their inhabitants is not at all of recent vintage. As early as 1906, this was granted to provincial boards by Act 15483which amended section 13 of the Organic Act of the Provinces4by providing that the provincial boards of provinces shall have the power "(nn) . . . To appropriate moneys from [their] funds, except those the use of which is otherwise specifically fixed by law, for other purposes having in view the general welfare of the province and its inhabitants." Similarly, the Administrative Code of 1916, reenacting with modification this provision of the Organic Act of the Provinces, provided that "Upon approval of the Department Head of the particular resolution by which such action shall be taken, the provincial boards of the respective provinces shall have authority (a) To appropriate money for purposes not specified by law, having in view the general welfare of the province and its inhabitants. . . ."5This provision was in turn reenacted in section 2106(a) of the Revised Administrative Code.6In truth, section 3(a) of theLocal Autonomy Actis nothing but a copy of section 2106(a) of the Revised Administrative Code, with the only difference that prior approval of the Department Head has been dispensed with, in line with the legislative policy of granting greater autonomy to local governments. In a sense, the elimination of the requisite approval is a return to the original provision of the old Organic Act of the Provinces.7It is in this sense that section 3 of theLocal Autonomy Actis entitled "Additional powers of provincial boards ..." and rightly so, for it removed the fetters that once bound local governments to the national government.Not once, since 1906, has the power to create public offices been asserted. But this power is now urged as a necessary corollary of the power to appropriate, this because section 12(1) (2) of theLocal Autonomy Actcommands that the implied powers of municipal corporations shall be liberally construed and that all doubts as to the existence of the power must be resolved in their favor.We cannot accept this view.The case ofFred vs. MayorandCouncil of Borough of Old Tappan8indicates the proper construction that should be placed on a provision like section 12(1) (2). There a similar provision of the New Jersey Constitution of 1947 was invoked to justify the validity of a municipal ordinance regulating the removal of soil. The Constitutional provision states:"The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law."It was argued that this clause of the Constitution, which had no counterpart in its predecessor constitution, introduced a new concept of home rule, being in effect a direct grant of the police power to all municipalities. This contention was rejected (although the ordinance was upheld on other grounds) the Supreme Court of New Jersey stating:"We find no merit in this contention of the defendant. The quoted provision of the Constitution on its face does not purport to be a grant of general police powers to ail municipalities, its plain language is not susceptible of being so construed, the proceedings of the Constitutional Convention referred to do not indicate that it was so intended, and during the five years since its adoption our courts have never so interpreted it. On the contrary, it is well settled in this State that a municipality has only those powers granted to it by statute, albeit by virtue of the constitutional provision here under discussion those powers are to be liberally construed in favor of the municipality and express grants of power are deemed to include `those' of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto. . . ."9It bears strong emphasis to state here that provincial governments, like other municipal corporations, are governments of enumerated powers.10The assumption, although historically inaccurate,11is that municipal corporations are mere creatures of the state with no inherent powers of their own.12This same assumption underlies the grant of autonomy to local governments,13for implicit in the grant is precisely the recognition that they exercise only delegated powers which should be enlarged and, in case of "fair and reasonable doubt", should be resolved in their favor.Section 12 (1) (2) of theLocal Autonomy Act, which is reproduced in Section 23 of the Decentralization Act of 1967, did not alter the basic nature of municipal governments as governments of limited power. What it changed was the prevailing rule at the time of its enactment that the grant of powers to municipal corporations must be strictly construed against them.14As a rule of interpretation it does not purport to supply power where none exists, not even by necessary implication.Here the power to create a provincial police force appears to be denied to provincial governments.15Thus, whereas section 2105(c) of the Revised Administrative Code gives them the power to appropriate money "for the organization, equipment and maintenance of a police force in any municipality or municipal district of the province where local funds are insufficient to bear such expenses," nothing is said of their power to provide for the organization of their own police. Again, while cities16and municipalities17are authorized to provide uniforms for their police forces no such authority is conferred on provinces. This power given to cities and municipalities is in addition to their power "to appropriate money for purposes not specified by law, having in view the general welfare of the city and its inhabitants,"18undoubtedly because the former cannot be fairly embraced in the latter. Section 2081 cannot be invoked because that provision authorizes the appointment of subordinate employees in existing offices, not the creation of the offices themselves.Indeed, municipal offices can be created only by legislative authority. This creative act must be either immediate or delegated.19In the Philippines, national and local police bodies are directly created by statute. Thus the Philippine Constabulary was constituted as a national police force by virtue of a statute.20So is the organization of police forces in cities and municipalities specifically provided for by an Act of Congress.21Even the formation ofposses comitatusin towns to assist the police in the apprehension of criminals is a matter of express statutory enactment.22Thus there is a national police force and there are city and municipal police forces, but the remarkable thing is that there is no provision for provincial police forces.This lack of statutory basis for the creation of provincial police forces stands in sharp contrast to the proliferation of statutory materials on municipal and city police forces. Not that peace and order are less a responsibility of the provinces. The reason is simply that the Governors are already clothed with ample powers and resources. They can temporarily transfer policemen from one municipality to another when public interests so requires.23They can call on the Philippine Constabulary or even on the Armed Forces of the Philippines to quell any "disorder, riot, lawless violence or rebellious or seditious conspiracy or to apprehend violators of law.24It seems quite clear indeed that the legislature intended to reserve for itself the field of legislation on this matter and thereby exclude from it like actions by local governments. Precedents in support of this view are not wanting. InFluker vs. City of Union Point25it was held that where the charter authorizes the appointment of a marshal and, in case of "special emergencies," of a special police, the city could not create an office of a night watchman with powers to arrest persons violating the laws and ordinances. Not even the plea that the office was necessary for the preservation of peace and order justified the creation of the office. Similarly, inStout vs. Stinnett26it was held that a statute creating the office of "the Chief of Police" did not authorize a city to appoint a day chief of police and a night chief of police and that an ordinance so providing was invalid.The power of provinces to create provincial police forces cannot be inferred. Neither can the existence of such bodies be implied from the fact that in prescribing the qualifications of members of local police agencies, section 9 of the Police Act of 1966 mentions "provincial police agencies" and the like. The reference to such bodies is a misnomer as is evident from the following discussion27on the bill which became the Police Act:"MR. PEREZ (L.) This bill carries phrases like `police agencies of a province or chartered city or municipality.' Under the present set-up, what would you consider as constituting the police agencies of a province?"MR. AMANTE That is a misnomer here. The original bill includes the organization of the provincial guards; hence it is suggested here that they be included in this bill. Even at the conference called by the President in connection with the peace and order condition, he suggested that the provincial guards be included under the supervision of the Commission."MR. PEREZ (L.) I support such proposal. This bill should state the number of provincial guards which each province, in accordance with its class, can employ; and also provide additional powers, because today such provincial guards only keep the security of the provincial jail."MR. AMANTE They guard prisoners."MR. PEREZ (L.) Will these guards enjoy the police powers of other police agencies contemplated under this bill?"MR. AMANTE No, they are only guards. However, their qualifications and their discipline shall be governed by this bill. In connection with the inclusion of provincial guards in the proposed measure, the Committee will welcome amendments."MR. PEREZ (L.) I will propose some amendments to that effect."MR. AMANTE Thank you.In fact, the term is used in other legislation before the enactment of the Police Act of 1966 and it has always been understood to refer to provincial guards assigned to provincial jails. It is used in Commonwealth Act 343 which constituted the Philippine Constabulary as a national police force28and returned to the control of the Governors the "provincial ... police bodiesor provincial guards"29who earlier, had been organized into a State Police, along with the police forces of the cities and municipalities.30President Quezon's Executive Order 15331as well as Executive Order 175,32issued to implement Commonwealth Act 343, likewise spoke of "local police bodies in each province" and "provincial police service" but that the term meant no more than provincial guards is evident from the text thereof.Like the power to appropriate money for the general welfare, the reference in statutes to provincial police agencies is nothing new.Apart from this, since a municipal office can be created only by legislative authority exercised either directly or through a grant of the power to municipal corporation, the existence of such an office as a fact cannot be inferred. This is the thrust of the rulings inCity of Metropolis vs. Industrial Commission33and inMurphy vs. Industrial Commission.34In the first case, the Cities and Villages Act provided that offices must be created by ordinance. It was argued that certain provisions of the Municipal Code of the City of Metropolis prescribed the powers and duties of policemen and hence that the office of night policeman "necessarily exists in that city." In disposing of this contention, the Illinois Supreme Court held that "neither provision of that character nor an appropriation of public money to pay the salary or compensation of a person acting as a policeman can operate, standing alone, to create the particular office."In the second case, an ordinance, enacted under the same Cities and Villages Act, provided that "The mayor shall, with the advice and consent of the city council, appoint for the term of one year, and until their respective successors in office are appointed and qualified, additional police officers in such number as said mayor and city council may deem expedient, to assist the chief of police in his official duty." In denying that an office was thereby created, the same court said: "That section does not purport to create the office of policeman or assistant chief of police. The provision that the mayor shall appoint additional police officers cannot be construed as an ordinance to create the office of policeman."Upon all the foregoing, it follows ineluctably that the creation of the Cavite Department of Public Safety is an unlawful exercise of power, and is without basis in law.Accordingly, Resolution 27, dated January 27, 1964, of the Provincial Board of Cavite and Administrative Order 65-1 of the respondent Governor dated March 1, 1965 are declared void, the Cavite Department of Public Safety is ordered dissolved, and the respondent public safety officers are ousted from their position. No pronouncement as to costs.Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles, andFernando, JJ., concur.|||(Republic v. Montano, G.R. No. L-28055, [October 30, 1967], 128 PHIL 652-669)

1. Discanso v. Gatmaytan, 109 Phil 916

EN BANC[G.R. No. L-12226. October 31, 1960.]DAMASO DISCANSO and FLORENCIO VALIENTE,petitioners-appellees,vs. FELICISIMO GATMAYTAN, Municipal Treasurer, Guimba, Nueva Ecija,respondent-appellant.Mariano D. Capuyocfor appellant.Inocencio B. Garampilfor appellees.SYLLABUS1.OFFICERS; POLICEMEN ILLEGALLY REMOVED; REINSTATEMENT WITH BACK SALARIES; PARTIES; INCLUSION OF MUNICIPALITY AS PARTY MERE FORMALITY. In several cases which involved the action of mandamus filed by detectives unlawfully ousted from their positions, this Court, without touching on the question of the City's liability for the Mayor's act in illegally dismissing the detectives, directed the payment of their back salaries, although the city had not been made a party therein (Missionvs.Del Rosario, 94 Phil., 483; 50 Off. Gaz., 1571; Abellavs.Rodriguez, 95 Phil., 289; 50 Off. Gaz., 3090; Uyvs.Rodriguez, 95 Phil., 493; 50 Off. Gaz., 3574; Brionesvs.Osmea, 104 Phil., 588; Covachavs.Amante, L-8358, May 25, 1956; and Menesesvs.Lacson, 97 Phil., 857; and in Mangubatvs.Osmea, L-12837, April 30, 1959, where the defense was that the City was not made a party to the proceedings, this Court likewise ruled that the ends of justice and equity would be served best if the inclusion of the City as one of the respondents therein, were considered a mere formality.2.ID.; SALARIES; NO BUDGET OF APPROPRIATION ORDINANCE; MANDAMUS DOES NOT LIE. Only specific legal rights may be enforced by mandamus (Viuda e Hijos de Crispulo Zamoravs.Wright, 53 Phil., 613). There being no budget or appropriation ordinance setting aside the funds to cover the salaries of the herein appellees, it is not the legal duty of the respondent-appellant treasurer to honor the vouchers in question. Consequently, mandamus will not lie.D E C I S I O NPAREDES,Jp:Petitioners-appellees Damaso Discanso and Florencio Valiente, were policemen of the municipality of Guimba, Nueva Ecija, who were removed from office, in 1952, by the then Acting Mayor Dr. Virgilio V. Calica. Appellees instituted Mandamus proceedings (Special Civil Action No. 1265) against the acting mayor Arsenio N. Padre. The lower court rendered judgment, declaring the removal of petitioners illegal and ordered their reinstatement and the payment of their back salaries.By virtue of the decision, the municipal council of Guimba approved resolutions Nos. 135, Exh. A, dated December 3, 1955; 156, dated June 30, 1956, Exh. B; and 162, dated July 7, 1956, Exh. C; whereby it assumed the responsibility and resolved to appropriate the amount of P5,173.16 for the payment of the back salaries of appellees, and authorizing the amount to be carried as an outstanding obligation of the municipality, in the annual budget for the fiscal year 1956- 1957. Pursuant to said resolutions, the then incumbent Mayor, Dr. V. Calica, approved vouchers of the petitioners (Exhibits D and E), covering their salaries as policemen for the municipality of Guimba, from July 27, 1952 to October 22, 1955, at P65.00 per month, in the total amount of P2,528.71, each. When the vouchers were presented to the municipal treasurer, Felicisimo Gatmaytan, now respondent, he refused to pay, claiming that there were no funds for said vouchers. The trial Court cited the treasurer to appear before it, in order that he might be examined regarding the finances of the municipality, and it was found that the amount of P10,000.00 was available for said purpose. The petitioners in said case then presented a motion for the execution of the judgment, which was denied on the ground that public funds are exempt from attachment.On October 13, 1956, long after the municipal council of Guimba had approved the three (3) resolutions, the same council (now with different composition), passed resolution No. 206, disallowing the inclusion of the amount in the budget of the municipality. The refusal of the municipal treasurer to pay the vouchers, caused the filing of the present petition for Mandamus, directed against said municipal treasurer to compel him to pay their back salaries.During the trial, the parties presented only documentary evidence. The lower court rendered judgment, the pertinent portions of which recite:"The petitioners have no other remedy in the ordinary course of law. A writ of execution issued in Civil Case No. 1265 had been returned unsatisfied. And since the defendant municipal treasurer has repeatedly and obstinently refused to pay the salaries of the petitioners, there is no other remedy except the writ of mandamus. To deny the petition would render the decision in Civil Case No. 1265 illusory and nugatory.Wherefore, let a writ of mandamus issue ordering the Municipal Treasurer of Guimba to pay the back salaries of the petitioners herein in the amount stated and approved in their vouchers Exhibits D and E. . . ."This is an appeal from the above judgment, respondent-appellant alleging that it was error for the lower court (1) to hold that a judgment against the mayor is deemed a judgment against the municipality; and (2) to order him (appellant) to pay the back salaries of the appellees, although the same are not provided in a budget approved by the municipal council.Anent the first proposition, in several cases which involved the action for mandamus filed by detectives unlawfully ousted from their positions, this Court, without touching on the question of the City's liability for the Mayor's act in illegally dismissing the detectives, directed the payment of their back salaries, although the city had not been made a party therein (Missionvs.Del Rosario, 94 Phil., 483; 50 Off. Gaz., 1571; Abellavs.Rodriguez, 95 Phil., 289; 50 Off. Gaz., 3090; Uyvs.Rodriguez, 95 Phil., 493; 50 Off. Gaz., 3574; Brionesvs.Osmea, 104 Phil., 588; 55 Off. Gaz., (11) 1920; Covachavs.Amante, G. R. No. L-8358, May 25, 1956, and Menesesvs.Lacson, 97 Phil., 857.) In the case of Mangubatvs.Osmea, G. R. No. L-12837, April 30, 1959, where the defense was that the City was not made a party to the proceedings, this Court made the following observations:"There is no reason to believe that these officers and the City Mayor would have exerted greater effort, than those already displayed by them, in protecting the interests of the City of Cebu, were it formally a respondent herein. Indeed, it is only logical to expect that having been individually named as respondents, said officers, must have taken as much concern if not more, in warding off petitioner's claim. Under the foregoing circumstances, we would be subordinating the substance to the form if the action for mandamus insofar as the claim for back salaries is concerned were, either dismissed, or remanded to the lower court, for the corresponding amendment of the pleading and a repetition of the proceedings held for the last five (5) years, in order to reach the same decision rendered by the lower court and the same conclusions set forth in this decision, as regards the substantive rights of the parties. It is our considered opinion, therefore, that the ends of justice and equity would be served best if the inclusion of the City of Cebu, as one of the respondents herein, were considered a mere formality and deemed effected, as if a formal amendment of the pleadings had been made."There can be no plausible reason why the above ruling on a procedural matter, should not be applied in the case under consideration. It will be noted that the case on appeal was an off-shoot of a mandamus proceeding instituted against the incumbent Mayor, in his capacity as such. And the municipality of Guimba is presumed to have taken steps to contest the claim of the petitioners-appellees. We may safely say, therefore, that the requirement of joinder of parties has been substantially complied with.Next in the order of discussion is the more fundamental issue of whether the respondent-appellant municipal treasurer was justified in refusing payment of the vouchers. After the rendition of the decision ordering the reinstatement of the petitioners and the payment of their back salaries, the municipal council of Guimba passed resolutions assuming the responsibility for and authorizing the inclusion of the back salaries in the budget. There is, however, no ordinance appropriating the amount, until the present. At most, the resolutions were only proposals to have the amount included in the "forthcoming budgets". A resolution is ordinarily a declaration of a council, or a legislative body, evincing some purpose or intent to do some actnot the doing of the act itself.It is the intention to enter upon some enterprise of public moment, something authorized by law that it may do (W.B. Gibson Covs.Warren Metropolitan Housing Authority, 29 N. E., 2d. 236). In the case at bar, the resolution assuming the obligation is considered as merely an intention on the part of the council to have the amount equivalent to the back salaries of appellees, included in the budget. A resolution may have the expression of intendment, but in order to become effectual, it must be expressed by legislative enactment, that is, by ordinance (City of Owensborovs.Bd. of Trustees, etc., 301 Ky. 113, 190 SW 2d, 1005, 1108). In this jurisdiction, all municipal legislation creating liability should be embodied in an appropriation ordinance (See. 2296, Revised Adm. Code). In the case under consideration, not only was there no appropriation ordinance wherein the amounts involved have been included in the budget of the municipality, but the municipal council itself had subsequently disallowed the inclusion of the same in the budget. The Revised Administrative Code further provides that the disbursements of municipal funds shall be made by the municipal treasurer, upon properly executed vouchers, pursuant to the budget (Sec. 2300). The Constitution also provides that "no money shall be paid out of the Treasury except in pursuance of an appropriation made by the municipal treasurer, upon properly executed Philippines). The writ of mandamus will not issue unless the act desired is of absolute obligation on the part of the person sought to be coerced; the relator must show a clear legal right to have the thing done; the action sought must not only be in the respondent's power to do, but it must be his duty to do it; the act must be clearly prescribed and enjoined by law; the duty must be plain and positive (Callaghanvs.Mc Gown, 90 S.W. 319, Meril on Mandamus, 43; cited in Provincial Remedies & Special Civil Actions, Hernandez, Jr. and Feria; p. 152). Only specific legal rights may be enforced by mandamus, if they are clear and certain. (Viuda Hijos de Crispula Zamoravs.Wright, 53 Phil., 613). It is not a legal duty of the respondent-appellant to honor the vouchers in question, without a budget or appropriation ordinance, setting aside the funds to cover the salaries of the appellees, and enacted or promulgated in accordance with law. Mandamus, therefore, does not lie.It would seem that in matters of this nature, the case of Baldiviavs.Lota, (107 Phil., 1099) has already blazed the trail that should be followed.In view of all the foregoing, the decision appealed from is hereby reversed, and another entered, dismissing the case, reserving, however, to the petitioners-appellees the right to take the appropriate action. No pronouncement as to costs. It is so ordered.Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcin, Reyes, J.B.L.,andGutierrez David, JJ.,concur.Barrera, J.concurs in the result.|||(Discanso v. Gatmaytan, G.R. No. L-12226, [October 31, 1960], 109 PHIL 916-921)

The suggested answer was probably premised in the cited case of Baldivia vs. Lota, 107 Phil. 1099 (1960):Indeed, respondent could have, and should have, either included the claim of petitioners herein in the general budget he is bound to submit, pursuant to section 2295 of the Revised Administrative Code, or prepared a special budget for said claim, and urged the municipal council to appropriate the sum necessary therefor. In any event, if the municipal mayor fails or refuses to make the necessary appropriation, petitioners may bring an action against the municipality for the recovery of what is due them and after securing a judgment therefor, seek a writ of mandamus against the municipal council and the municipal mayor to compel the enactment and approval of the appropriation ordinance necessary therefor (19 R.C.L. 1951-1052; 34 Am. Jur., 950-951; 35 Am. Jur., 21)JOSE BALDIVIA, MARCELO CAPUNO, CARLlTO CATAPANG, ELISEO DIMACULANGAN, and RICARDO BATHAN,petitioners-appellants,vs.FLAVIANO LOTA, as Mayor of Taal, Batangas,respondent-appellee.Miguel Tolentinofor appellants.Assistant Provincial Fiscal Gregorio C. Panganiban, Assistant Solicitor General Antonio A. TorresandSolicitor Eriberto D. Ignacio,for appellee.SYLLABUS1.MUNICIPAL CORPORATIONS; APPROPRIATION ORDINANCE; REFUSAL OF MUNICIPAL MAYOR TO SIGN VOUCHERS FOR PAYMENT OF LAWFUL CLAIMS AGAINST MUNICIPALITY, WHEN JUSTIFIED. Article VI, section 23(2) of the Constitution of the Philippines, provides that "no money shall be paid out of the Treasury except in pursuance of an appropriation made by law." Pursuant thereto, section 2300 of the Revised Administrative Code provides that "disbursements of municipal funds shall be made by the municipal treasurer upon properly executed vouchers, pursuant to the budget and with approval of the mayor," and the budget must be incorporated into an appropriation ordinance, which shall be passed by the municipal council, in accordance with law (Sections 2237, 2295 and 2296, Revised Administrative Code). Where, therefore, as in the case at bar, there is no such budget or appropriation ordinance setting aside the sums necessary to pay the claims for leave pay of petitioners - members of the police force who resigned from the service - the mayor was, not only justified in refusing, but bound to refuse to approve the necessary vouchers.2.ID.; ID.; REMEDY WHERE MUNICIPAL COUNCIL AND MUNICIPAL MAYOR FAILED TO APPROPRIATE SUM FOR PAYMENT OF LAWFUL CLAIMS AGAINST MUNICIPALITY. Where the municipal mayor fails or refuses to submit or propose a budget for a just and legal claim against the municipality, or the municipal council fails to appropriate the necessary sum, the claimants may bring an action against the municipality for the recovery of what is due them and after securing a judgment therefor, seek a writ of mandamus against the municipal council and the municipal mayor to compel the enactment and approval of the appropriation ordinance necessary therefor (19 R.C.L. 1051-1052; 34 Am. Jur., 950-951; 35 Am. Jur., 21).D E C I S I O NCONCEPCION,Jp:This is a petition for mandamus to compel respondent, Flaviano Lota, as Mayor of Taal, Batangas, to approve certain vouchers. In due course, the Court of First Instance of Batangas, presided over by Hon. Conrado M. Vasquez, Judge, denied the petition, without pronouncement as to costs. Hence, this appeal in which only questions of law are raised.The facts, about which there is no dispute, are correctly set forth in the decision appealed from in the following language:"The petitioners Jose Baldivia, Marcelo Capuno, Carlito Catapang, Eliseo Dimaculangan and Ricardo Bathan were former members of the police force of the municipality of Taal, province of Batangas. Shortly after the last election held in November 1955, the petitioners resigned from their positions. They have brought this instant action to compel the respondent Flaviano Lota in his capacity as municipal mayor of Taal, Batangas, to approve the vouchers submitted by the petitioners for the payment of the leave pay which they had in their favor at the time of their separation from the service."The evidence of the petitioners show that the petitioners resigned because they belong to a different political faction from that of the respondent. In connection with their claim for their leave pay, they had gone to the Office of the President in Malacaang, and were able to secure a note from Assistant Executive Secretary Enrique c. Quema, addressed to the Provincial Treasurer of Batangas, requesting the latter to help the petitioners in securing the payment of their accumulated vacation and sick leave (Exhibit 'A'). Acting on the said note of Mr. Quema, the Provincial Treasurer wrote separate letters to the respondent municipal mayor and to the municipal treasurer of Taal, Batangas, interceding in behalf of the petitioners and suggesting a manner by which their claim may be paid (Exhibits 'B' and 'C'). The petitioner Jose Baldivia was actually able to receive one month leave pay on two separate occasions, on December 1, 1955, and February 10, 1956, respectively. The other petitioners were likewise able to receive one month leave pay each on February 10, 1956. The petitioners claim, however, that there is a balance remaining in their favor of unpaid vacation leave in the amount of three and one-half (3 1/2) months in the case of Jose Baldivia, and four months each in the case of the rest of the petitioners, all at the rate of P35.00 a month. The municipal treasurer prepared the corresponding vouchers for the payment of another one month vacation leave to each of the petitioner and submitted them to the respondent mayor for approval. The respondent, however, refused to approve the same."In justification for his act, respondent alleged that there is no appropriation for the amount covered by said vouchers; that petitioners held their positions illegally, they having served beyond the time limit prescribed by law for the effectivity of their appointments as temporary employees; and that said appointments were illegal, the same having been made without the consent of the municipal council, which is required in sections 2199 and 2200 of the Revised Administrative Code.Commenting thereon, the lower court said:"The parties are agreed that the municipal council of Taal has not approved any budget, regular or otherwise, for the payment of the leave pay being claimed by the petitioners. Aurelio Beron, municipal treasurer of Taal, testifying for the petitioners, had admitted that the previous payments made to the petitioner were in pursuance of a supplementary budget duly approved, but no budget has been authorized by the municipal council in connection with the payment of the balance of the leave pay corresponding to the petitioners. He stated, however, that the financial position of the municipal government permits the payment of the instant claim. The respondent municipal mayor has offered the excuse for the inability of the municipal council to appropriate the necessary funds on the alleged ground that the municipal government of Taal is heavily indebted to several government institutions, and the funds presently in its treasury are not sufficient to liquidate all of the said indebtedness. Moreover, the municipal government has other and more pressing obligations to meet before it could afford to set aside funds for the leave pay of the petitioners."Under the circumstances set forth above, the instant action of the petitioners must necessarily fail. If there are no funds validly appropriated for the purpose, the respondent municipal mayor, or anybody else for that matter, may not be compelled to approve a voucher for the payment of the claim. The disbursements of municipal fund is not the sole prerogative and responsibility of the municipal mayor. Section 2300 of the Revised Administrative Code explicity declares that 'The disbursement of municipal funds shall be made by the municipal treasurer upon properly executed vouchers, pursuant to the budget, with the approval of the mayor.' It would indeed be not only futile, but likewise illegal, for the mayor to approve a voucher to pay a claim for which no appropriation has been made by the council."Hence, the petition was denied, despite the sympathetic attitude of His Honor, the Trial Judge, towards the plight of petitioners herein. They, however, maintain that the decision appealed from should be reversed because they are clearly entitled to collect the equivalent of the unpaid portion of their terminal leave and the municipal government of Taal is in financial position to meet their respective claims, and because respondent's inaction has had the effect of excluding them from getting what is due to them under the law.Petitioners' right to commutation of their terminal leave is indubitable. Pursuant, however, to our fundamental law, "no money shall be paid out of the Treasury except in pursuance of an appropriation made by law." (Article VI, section 23 (2), Constitution of the Philippines). Implementing this constitutional mandate, section 2300 of the Revised Administrative Code provides that "disbursements of municipal funds shall be made by the municipal treasurer upon properly executed vouchers,pursuant to the budgetand with approval of the mayor," and the budget must be incorporated into an appropriation ordinance, which shall be passed by the municipal council, in accordance with law (sections 2237-2239, 2295 and 2296, Revised Administrative Code). There being, admittedly no such budget or appropriation ordinance setting aside the sums necessary to pay the claims of petitioners herein, it is apparent that respondent mayor was, not only justified in refusing, but bound to refuse to approve the vouchers in question.At this point, we cannot overlook, however, the well-considered observations made in the decision appealed from respecting the behaviour of respondent herein as a public officer. We quote, from said decision:". . . while the Court feels itself powerless to grant the relief prayed for by the petitioners, it could not help but express its sympathy with their situation, and its displeasure with the manner by which they had been deprived of a claim which appeared to be valid and meritorious. This case is another manifestation of that unfortunate phenomenon in local politics in this country wherein considerations of public interest have been set aside for the satisfaction of petty factional jealousies and sacrificed on the altar of political rivalries. The instant petitioners are claiming only what is due them nothing more, nothing less. The payment of leave pay to an employee who has been separated from the service and who generally depends for his continued sustenance on such amounts as may be collected by him by reason of his past services, is not only an expression of simple justice on the part of the government, but is also designed for the maintenance of the loftier ideal of morale in the public service. The respondent in this case has shown unusual interest not for the purpose of affording the petitioners the justice that is due them, but in his attempt to find ways and means of defeating the petitioners' claim. The respondent has admitted that he had spent over a thousand pesos in going to different government offices and in making several trips to Manila to consult with 'legal luminaries' to research and find reasons to justify his refusal to pay the petitioners. It is ironic indeed that in so doing, he actually spent more than what the petitioners are claiming to be the balance of their unpaid leave. It may well be said that had the respondent instead spent his money, time and effort to look for means by which he could pay the petitioners, he would have dedicated himself to a worthier cause and with decidedly lesser effort and expense."Indeed, respondent could have, and should have, either included the claim of petitioners herein in the general budget he is bound to submit, pursuant to section 2295 of the Revised Administrative Code, or prepared a special budget for said claim, and urged the municipal council to appropriate the sum necessary therefor. In any event, if the municipal mayor fails or refuses to make the necessary appropriation, petitioners may bring an action against the municipality for the recovery of what is due them and after securing a judgment therefor, seek a writ of mandamus against the municipal council and the municipal mayor to compel the enactment and approval of the appropriation ordinance necessary therefor (19 R. C. L. 1051- 1052; 34 Am. Jur., 950-951; 35 Am. Jur., 21).Wherefore, the decision appealed from is hereby affirmed, without special pronouncement as to costs. It is so ordered.Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Endencia, BarreraandGutierrez David, JJ.,concur.|||(Baldivia v. Lota, G.R. No. L-12716, [April 30, 1960], 107 PHIL 1099-1104)

A. To incur indebtednessi. To borrowii. To issue bondsiii. Credit FinancingB. To sue and be suedi. Natureii. Municipal Corporations files suites in behalf of inhabitantsCase: Municipality v. Abucay, 64 Phil 69

THE MUNICIPALITY OF ABUCAY,plaintiff-appellee,vs. ABUCAY PLANTATION CO. and B. A. GREEN,defendants-appellants.Briones & Martinez, Isidro Vamenta,andJose C. Fajardofor appellants.Solicitor-General Hiladofor the Government.SYLLABUS1.MUNICIPALITIES; AUTHORITY TO SUE; AUTHORITY OF MUNICIPAL PRESIDENT TO SIGN COMPLAINT; PRESUMPTIONS. In support of the motion of dismiss, counsel for the defendants alleged that the plaintiff's action should be dismissed because it did not establish that the municipal council of Abucay had approved an ordinance or resolution authorizing the institution of the action and empowering the municipal president to represent it in the case. We believe that the contention is without merit. The complaint shows that the one who instituted the action was the municipality of Abucay, not the municipal president. Section 2165 of the Revised Administrative Code authorizes municipalities to sue by instituting civil actions, and to be sued. In the absence of any evidence to the contrary, the presumption must be that the municipal council of Abucay, whose members represent the municipality under Article IX, Title IX, of the aforesaid Code, agreed by resolution or ordinance to bring the present action (sec. 334, No. 14, Code of Civil Procedure). As to the other point, we not that the municipal president did not represent either the municipality of Abucay or the municipal council in the case. The complaint only shows that the municipal president signed for the municipality of Abucay, plaintiff, after the latter's name was made to appear as plaintiff. In these circumstances it can not be held that the municipal president represented the municipality of Abucay or its municipal council in the case, and it must also be presumed that said official was actually authorized to sign the complaint for the plaintiff (sec. 334 No. 31, Code of Civil Procedure).2.PLEADING AND PRACTICE; TRIALS; MOTION TO DISMISS, DENIAL OF; EFFECT WHEN THE MOVANT DID NOT RESERVE RIGHT TO PRESIDENT EVIDENCE. The motion to dismiss filed by counsel for the defendants during the trial and after the plaintiff had closed its evidence was in effect a demurrer to the sufficiency of plaintiff's evidence. In reality it was based upon the fact that the plaintiff had not established its standing or right to bring the action; hence, the defendants missed the ordinance or resolution to that effect enacted and approved by the municipal council of Abucay. It is a practice sanctioned by the jurisprudence in this jurisdiction to permit both in criminal and civil cases the presentation of motions to dismiss or demurrers to the evidence based upon the insufficiency of the evidence of the prosecution or of the plaintiff, and it has been invariably held that when the accused or the defendants do not reserve their right to adduce evidence, the courts may decide the case upon the evidence only thus submitted, and on appeal, should the evidence be sufficient to affirm the appealed decision, the case will not be remanded for a new trial to receive the evidence suppressed. (U. S. vs. Abaroa, 3 Phil., 116; U. S. vs. Romero, 22 Phil., 565; U. S. vs. De la Cruz, 28 Phil., 279; U. S. vs. Choa Chiok, 36 Phil., 831; Demetrio vs. Lopez, 50 Phil., 45; Moody, Aronson & Co. vs. Hotel Bilbao, 50 Phil., 198; Ortiz vs. Balgos, 54 Phil., 171). The same rule applies in election cases, except that when the protestee reserves his right to adduce evidence, it is the duty o the court to overrule the motion to dismiss and to require him to introduce his evidence in support of his defenses or counterprotest, if any. (Demetrio vs. Lopez,supra.)D E C I S I O NIMPERIAL,Jp:The municipality of Abucay, Province of Bataan, brought this action to compel the defendants to open to the public the country roads Gabon, Mabatang and Laon, situated within the said municipality; to remove the wire fences constructed by them, and to refrain in the future from closing the said roads to the public. Plaintiff alleged in its complaint that the said roads were for public use from time immemorial and that the defendants, claiming to be the owners thereof because included in their title to the plantation known as the "Abucay Plantation Company," illegally closed them to the public. The defendants in their answer only denied generally and specifically the material allegations of the complaint. Upon motion of the plaintiff, the court issued a preliminary injunction ordering the defendants to remove the fences or obstructions which they placed upon the roads, and enjoining them, until further order, from preventing and obstructing the public from using said roads. After the plaintiff had adduced its evidence at the trial, counsel for the defendants moved to dismiss the case upon the grounds that the plaintiff had not established its cause of action; that it had not been established that the municipal council of Abucay had authorized the municipal president, by ordinance or resolution, to represent the plaintiff in the case, wherefore, its standing in the case had not been proved, and that it had not been established likewise that the municipal council of Abucay had agree to institute the action. The court denied the motion to dismiss, and at the same time decided the case declaring the Gabon, Mabatang and Laon roads open and destined for public use, and made the preliminary injunction permanent, with the costs to the defendants. The latter moved for a new trial, excepted to the order denying said motion, and, finally, presented the bill of exceptions which was approved by resolution of this court of October 23, 1934 in the mandamus case, G. R. No. 42535, between the same parties.As to the facts, the plaintiff established that the three roads in question had existed during the Spanish regime and were always destined for the use of the public and considered as property of the municipality of Abucay, open for the common use and passage of the inhabitants of the town, although they were then only footpaths with no well-defined width that they have now, which is six (6) meters according to the cadastral plans. A portion of the Gabon road crosses the hacienda of the Abucay Plantation Company, and the latter's officers built a fence thereon and prevented its use by the public. In the partial decisions rendered in cadastral case No. 3 of Abucay on March 28, 1919 and February 2, 1922, the court held that the Gabon and Laon roads belonged to the municipality of Abucay, destined for common and public use and ordered that the corresponding decrees be issued in favor of said municipal corporation. And in the partial decisions rendered on August 5, 1922, and July 21, 1927, in cadastral cases Nos. 7 and 9 of the same municipality, the court likewise held that all highways, roads, streets, and alleys found within the lands included in the cadastral plans, among them being the Mabatang road, were public property of the Government of the Philippine Islands. In the plan of the hacienda of the defendant corporation it appears that the three roads aforesaid are excluded from the lands of the hacienda and are public roads destined for the common use of the inhabitants of the town of Abucay.In support of the motion to dismiss, counsel for the defendants alleged that the plaintiff's action should be dismissed because it did not establish that the municipal council of Abucay had approved an ordinance or resolution authorizing the institution of the action and empowering the municipal president to represent it in the case. We believed that the contention is without merit. The complaint shows that the one who instituted the action was the municipality of Abucay, not the municipal president. Section 2165 of the Revised Administrative Code authorizes municipalities to sue by instituting civil actions, and to be sued. In the absence of any evidence to the contrary, the presumption must be that the municipal council of Abucay, whose members represent the municipality under Article IX, Title IX, of the aforesaid Code, agreed by resolution or ordinance to bring the present action (sec. 334, No. 14, Code of Civil Procedure). As to the other point, we note that the municipal president did not represent either the municipality of Abucay or the municipal council in the case. The complaint only shows that the municipal president signed for the municipality of Abucay, plaintiff, after the latter's name was made to appear as plaintiff. In these circumstances it can not be held that the municipal president represented the municipality of Abucay or its municipal council in the case, and it must also be presumed that said official was actually authorized to sign the complaint for the plaintiff (sec. 334, No. 31, Code of Civil Procedure). We, therefore, reach the conclusion and so hold that the first assignment of error is untenable.As has been said, the court did not immediately pass upon the motion to dismiss filed by counsel for the defendants, but denied the same in its decision and at the same time considered the case on its merits without waiting for the defendants to present their evidence. The latter contend that the court erred in not affording them an opportunity to present their evidence after denying their motion, and state in their brief that they filed said motion conditionally, that is, without prejudice to their right to adduce evidence should the motion to dismiss be denied. We have gone over the transcript of record and found that counsel for the defendants did not reserve such right but submitted the motion without any condition. The defendants insinuate that one of their attorneys made the reservation which does not appear in the transcript but which in a conversation with the judge, the latter accepted as having been actually made. We cannot accept the contention upon this point because it does not appear in the record and the trial judge, in his decision, stated indirectly that the defendants did not reserve their right to adduce evidence. As between what appears or record and what does not appear therein and which is further denied by the other party, we choose to believe the former.The motion to dismiss filed by counsel for the defendants during the trial and after the plaintiff had closed its evidence was in effect a demurrer to the sufficiency of plaintiff's evidence. In reality it was based upon the fact that the plaintiff had not established its standing or right to bring the action; hence, the defendants overlooked the ordinance or resolution to that effect enacted and approved by the municipal council of Abucay. It is a practice sanctioned by the jurisprudence in this jurisdiction to permit both in criminal and civil cases the presentation of motions to dismiss or demurrers to the evidence based upon the insufficiency of the evidence of the prosecution or of the plaintiff, and it has been invariably held that when the accused or the defendants do not reserve their right to adduce evidence, the courts may decide the case upon the evidence only thus submitted, and on appeal, should the evidence be sufficient to affirm the appealed decision, the case will not be remanded for a new trial to receive the evidence suppressed. (U. S. vs. Abaroa, 3 Phil., 116; U. S. vs. Romero, 22 Phil., 565; U. S. vs. De la Cruz, 28 Phil., 279; U. S. vs. Choa Chiok, 36 Phil., 831; Demetrio vs. Lopez, 50 Phil., 45; Moody, Aronson & Co. vs. Hotel Bilbao, 50 Phil., 198; Ortiz vs. Balgos, 54 Phil., 171.) The same rule applies in election cases, except that when the protestee reserves his right to adduce evidence, t is the duty of the court to overrule the motion to dismiss and to require him to introduce his evidence in support of his defenses or counterprotest, if any. (Demeterio vs. Lopez,supra.)In the brief filed by counsel for the defendants, they cite the ruling in Demeterio vs. Lopez,supra, thus giving the impression that the said ruling favors their stand. A reading of the doctrine in said case reveals a confirmation of the rule that when a defendant in a civil case presents a motion to dismiss upon the ground of the insufficiency of plaintiff's evidence, without reserving his right to present his own evidence, should the motion to dismiss be overruled, he loses his right to adduce his evidence, and the court may decide the case upon its merits taking into account only the evidence for the plaintiff. The reason assigned for the doctrine thus established is, that in such cases it must be understood that the party filing the motion to dismiss without any reservation renounces its right to present evidence.In the case of Ortiz vs. Balgos, supra, the doctrine has been reiterated and the cases wherein the doctrine has been uniformly laid down has been cited with approval. It will be seen from a reading of the decision that the different result reached therein was due to the fact that the motion or demurrer was not based upon the insufficiency of plaintiff's evidence, but upon the legal question raised that a necessary party defendant had not been included in the complaint.Finding, therefore, that the defendants did not reserve their right to adduce their evidence, we hold that the second assignment of error is untenable.The last assignment of error refers to the denial of the motion for new trial. In view of the conclusions heretofore reached, we hold that the motion for new trial was properly denied by the court and no error was thereby committed.For the foregoing considerations, the appealed judgment is affirmed, with the costs of this instance to the defendants and appellants. So ordered.Avancea, C. J., Villa-Real, Abad Santos, Diaz Laurel,andConcepcion, JJ.,concur.|||(Municipality of Abucay v. Abucay Plantation Co., G.R. No. 42802, [February 8, 1937], 64 PHIL 69-75)

Mancenido v. CAG.R. NO. 118605(April 12, 2000)FACTS: Petitioners, who are public school teachers, filed a case against the provincial officials to compel them to pay their claims for unpaid salary increases. In this petition for review on certiorari, they argue that the CA erred in recognizing the authority of the council of the provincial officials to file a notice of appeal.

HELD: The SC held that in resolving whether a local government official may secure the services of private counsel in an action filed against him in his official capacity, the nature of the action and the relief sought are to be considered. In view of the damages sought in the case at bar which, if granted, could result in personal liability, respondents could not be deemed to be improperly represented by private counsel.

ANTONIO C. RAMOS, ROSALINDA M. PEREZ, NORMA C. CASTILLO and BALIUAG MARKET VENDORS ASSOCIATION, INC.,petitioners,vs. COURT OF APPEALS, HON. CAMILO O. MONTESA, JR., in his capacity as Presiding Judge of the Regional Trial Court of Bulacan, Branch 19, and MUNICIPALITY OF BALIUAG,respondents.Aniano Albon, Remeo S.Salinas and Eliodoro C.Cruzfor petitioners.Sison Q.Jarapafor respondent Municipality.SYLLABUS1.ADMINISTRATIVE LAW; MUNICIPALITY; LAWSUITS; AUTHORIZED REPRESENTATIVES; PRIVATE ATTORNEY; ONLY IN EXCEPTIONAL CASES. The recent case ofMunicipality of Pililla, Rizal vs.Court of Appeals, set in clear-cut terms the answer to the question of who may legally represent a municipality in a suit for or against it. Only the provincial fiscal, provincial attorney, and municipal attorney should represent a municipality in its lawsuits. Only in exceptional instances may a private attorney be hired by a municipality to represent it in lawsuits. These exceptions are enumerated in the case ofAlinsug vs.RTC, Br.58, San Carlos City, Negros Occidental. Private lawyers may not represent municipalities on their own. Neither may they do so even in collaboration with authorized government lawyers. This is anchored on the principle that only accountable public officers may act for and in behalf of public entities and that public funds should not be expended to hire private lawyers.2.ID.; ID.; ID.; UNAUTHORIZED REPRESENTATIVE; LEGALITY OF APPEARANCE MAY BE RAISED AT ANY STAGE OF THE PROCEEDING. Petitioners cannot be held in estoppel for questioning the legality of the appearance of Atty. Romanillos, notwithstanding that they questioned the witnesses of respondent municipality during the hearing of its motion to dissolve the preliminary injunction.Municipality of Pililla, Rizal vs. Court of Appealsheld that the legality of the representation of an unauthorized counsel may be raised at any stage of the proceedings. Elementary fairness dictates that parties unaware of the unauthorized representation should not be held in estoppel just because they did not question on the spot the authority of the counsel for the municipality.3.ID.; ID.; ID.; ID.; ADOPTION OF WORK ALREADY PERFORMED IN GOOD FAITH; WHEN PROPER. Although a municipality may not hire a private lawyer to represent it in litigations, in the interest of substantial justice, however, we hold that a municipality may adopt the work already performed in good faith by such private lawyer, which work is beneficial to it (1) provided that no injustice is thereby heaped on the adverse party and (2) provided further that no compensation in any guise is paid therefor by said municipality to the private lawyer. Unless so expressly adopted, the private lawyer's work cannot bind the municipality.4.ID.; ID.; ID.; ID.; MOTION TO WITHDRAW APPEARANCE; NOTICE TO ADVERSE PARTY WHO QUESTIONED THE APPEARANCE, NOT NECESSARY. A motion to withdraw the appearance of an unauthorized lawyer is a non-adversarial motion that need not comply with Section 4 of Rule 15 as to notice to the adverse party. The disqualification of Atty. Romanillos was what petitioners were really praying for when they questioned his authority to appear for the municipality. The disqualification was granted, thereby serving the relief prayed for by petitioners. Such being the case, no "notice directed to the parties concerned and served at least 3 days before the hearing thereof" need be given petitioners, the questioned motion not being contentious. Rules of procedure are but tools designed to facilitate the attainment of justice, such that when rigid application of the rules tend to frustrate rather than promote substantial justice, this Court is empowered to suspend their operation.D E C I S I O NPANGANIBAN,Jp:Who has the legal authority to represent a municipality in lawsuits? If an unauthorized lawyer represents a municipality, what is the effect of his participation in the proceedings? Parenthetically, does a motion to withdraw the appearance of the unauthorized counsel have to comply with Rule 15 of the Rules of Court regarding notice and hearing of motions?These questions are answered by this Court in resolving this petition for review under Rule 45 of the Rules of Court of the Decision1of public respondent2in CA-G.R. SP No. 23594 promulgated on March 15, 1991, which denied due course to and dismissed the petition therein. Also assailed is the Resolution3of public respondent promulgated on May 9, 1991, which denied the motion for reconsideration for lack of merit.The FactsThe facts as found by public respondent are undisputed, to wit:4"On April 18, 1990, petitioners Antonio C. Ramos, Rosalinda M. Perez, Norma C. Castillo, and the Baliuag Market Vendors Association, Inc. filed a petition before the courta quodocketed as Civil Case No. 264-M-9 for the Declaration of Nullity of Municipal Ordinances No. 91 (1976) and No. 7 (1990) and the contract of lease over a commercial arcade to be constructed in the municipality of Baliuag, Bulacan.On April 27, 1980, during the hearing on the petitioners' motion for the issuance of preliminary injunction, the Provincial Fiscal appeared as counsel for respondent Municipality of Baliuag, which opposed the petition. Whereupon, a writ of preliminary injunction was issued by the courta quoon May 9, 1990.Meanwhile, on May 3, 1990, the Provincial Fiscal and the Provincial Attorney, Oliviano D. Regalado, filed an Answer in (sic) behalf of respondent municipality.At the pre-trial conference scheduled on May 28, 1990, Atty. Roberto B. Romanillos appeared, manifesting that he was counsel for respondent municipality. On the same date, and on June 15, 1990, respectively, Atty. Romanillos filed a motion to dissolve injunction and a motion to admit an Amended Answer with motion to dismiss.On June 18, 1990, Provincial Attorney Oliviano D. Regalado appeared as collaborating counsel of Atty. Romanillos. The Provincial Fiscal did not appear. It was Atty. Romanillos who submitted the Reply to- petitioners' Opposition to respondents' motion to dissolve injunction. It was also Atty. Romanillos who submitted a written formal offer of evidence on July 17, 1990 for respondent municipality.During the hearing on August 10, 1990, petitioners questioned the personality of Atty. Romanillos to appear as counsel of (sic) the respondent municipality, which opposition was reiterated on August 15, 1990, and was put in writing in petitioners' motion of August 20, 1990 to disqualify Atty. Romanillos from appearing as counsel for respondent municipality and to declare null and void the proceedings participated in and undertaken by Atty. Romanillos.Meanwhile, Atty. Romanillos and Atty. Regalado filed a joint motion dated August 22, 1990 stating, among others, that Atty. Romanillos was withdrawing as counsel for respondent municipality and that Atty. Regalado, as his collaborating counsel for respondent municipality, is adopting the entire proceedings participated in/undertaken by Atty. Romanillos.On September 19, 1990 respondent Judge issued the Order now being assailed which, as already stated, denied petitioners' motion to disqualify Atty. Romanillos as counsel for respondent municipality and to declare null and void the proceedings participated in by Atty. Romanillos; and on the other hand, granted Atty. Regalado's motion 'to formally adopt the entire proceedings including the formal offer of evidence.' In support of his foregoing action, respondent Judge reasoned:'Petitioners' motion for the disqualification of Atty. Romanillos as respondent municipality's counsel is deemed moot and academic in view of his withdrawal as counsel of said municipality pursuant to a joint motion dated August 22, 1990, although he shall remain as counsel on record of private respondent Kristi Corporation. Atty. Oliviano Regalado under the same joint motion moved for the adoption of the entire proceedings conducted by collaborating counsel, Atty. Romanillos.It is noted that Atty. Romanillos initially entered his appearance as collaborating counsel of the Provincial Prosecutor and the Provincial Attorney when he filed a motion to dissolve injunction under motion dated May 30, 1990 and since then despite his active participation in the proceedings, the opposing counsel has never questioned his appearance until after he made a formal offer of evidence for the respondents. The acquiescence of petitioners' counsel of (sic) his appearance is tantamount to a waiver and petitioners are, therefore, estopped to question the same. In all the pleadings made by Atty. Romanillos, it was clearly indicated that he was appearing as the collaborating counsel of the Provincial Attorney. Besides, petitioners' counsel failed to submit their comment and/or objection to the said joint motion of respondents' counsel as directed by the Court within the reglementary period. By virtue of these circumstances, all the proceedings attended to and participated in by said collaborating counsel is afait accompliand the Court finds no cogent justification to nullify the same.'Petitioners' motion for reconsideration of the foregoing Order was denied by respondent Judge in his Order dated October 19, 1990, the second Order now being assailed. Respondent Judge reiterated the observations which he made in the Order of September 19, 1990 that Atty. Romanillos, while actively handling the said case was merely appearing as the collaborating counsel of both the Provincial Prosecutor and the Provincial Attorney of Bulacan; that Atty. Romanillos' appearance was 'never impugned by petitioners' and was only questioned after his (Atty. Romanillos') submission of the formal offer of evidence for respondent; and that therefore, said court proceedings 'is (sic) afait accompli'. Respondent Judge went on to say that the declaration of nullity of said proceedings and the re-taking of the same evidence by the same parties is (sic) "apparently an exercise in futility'. He added that in the absence of untimely objection by petitioners to Atty. Romanillos' appearance as the collaborating counsel, petitioners are guilty of laches for having slept on (sic) their rights and are estopped as their acquiescence may be considered as waiver of such right. Furthermore, according to respondent Judge, assuming that the proceedings had been 'tainted with frailness to render the same legally objectionable,' the same has been 'legally remedied' by its formal adoption upon motion of the Provincial Accorney (sic), Atty. Regalado, who is not disqualified to appear as counsel for the municipality of Baliuag, for the reason that by virtue of Section 19 ofR.A. No. 5185(The Decentralization Act of 1967), the authority to act as legal officer/adviser for (sic) civil cases of the province of Bulacan, of which the municipality of Baliuag is a political subdivision, has been transferred from the Provincial Fiscal (now Provincial Prosecutor) of Bulacan to the Provincial Attorney thereof."As earlier stated, the Court of Appeals dismissed the petition and denied the motion for reconsideration. Hence this recourse.The IssuesThe issues raised by petitioners in their Memorandum are:5"1)Under present laws and jurisprudence, can a municipality be represented in a suit against it by a private counsel?2)If not, what is the status of the proceedings undertaken by an unauthorized private counsel;3)Can the provincial attorney of a province act as counsel of a municipality in a suit;4)Can the provincial attorney adopt with legal effect the proceedings undertaken by an unauthorized private counselof (sic) a municipality;5)May a court act on an alleged motion which violates Sections 4 and 5 of Rule 15 and Section 26, Rule 128 of the Rules of Court."Petitioners contend that the assailed Decision which affirmed the Orders of the trial court is void for being violative of the following laws:6"VI-1The respondent court violated Section 1683 of the RevisedAdministrative Code; Section 3, paragraph 3 (a) ofRepublic Act No. 2264, otherwise known as theLocal Autonomy Act; and Section 35; Book IV, Title III, Chapter 12,Administrative Codeof 1987 (Executive Order No. 292) when it authorized Atty. Oliviano D. Regalado, the Provincial Attorney of Bulacan, to appear as counsel for respondent Municipality of Baliuag.VI-2The respondent court violated Section 1683 of the RevisedAdministrative Code; Section 3, paragraph 3 (a) ofRepublic Act No. 2264, otherwise known as theLocal Autonomy Act; Section 35, Book IV, Title III, Chapter 12,Executive Order No. 292, otherwise known as theAdministrative Codeof 1987; and Article 1352 of the New Civil Code, when it denied the petitioners' motion to declare the proceedings undertaken or participated in by said Atty. Roberto B. Romanillos, as private counsel of respondent Municipality, null and void.VI-3The respondent court acted in excess of its jurisdiction and in grave abuse of discretion when it acted and granted the respondent's JOINT MOTION dated August 22, 1990 (Annex 'H') which, as a rule, is a mere worthless piece of paper which the respondent judge/court has no authority to act upon, considering that said motion was filed in court in patent violation of or without complying with the mandatory requirements provided for by Sections 4 and 5 of Rule 15 and Section 26 of Rule 138 of the Rules of Court."Public respondent did not give due course to the petition "because it does notprima facieshow justifiable grounds for the issuance ofcertiorari."7Public respondent adds that:8"Considering the foregoing jurisprudence, the logical conclusion is that the Provincial Attorney of Bulacan has now the authority to represent the municipality of Baliuag in its law suits.It follows that respondent Judge was correct in ruling in the assailed Order of October 19, 1990 that even assuming,arguendo, that the proceedings by the courta quowhich had been participated in by Atty. Romanillos are legally objectionable, this was legally remedied by the formal adoption by the provincial Attorney, Atty. Regalado, of the said proceedings, considering that the provincial attorney is not disqualified from representing the municipality of Baliuag in civil cases.In the second place, the record discloses that Atty. Romanillos had appeared as counsel for respondent municipality of Baliuag in collaboration with the Provincial Prosecutor and the Provincial Attorney, as shown in the motion to dissolve injunction dated May 28, 1990 which Atty. Romanillos had filed for respondent municipality. Accordingly and pursuant to the aforecited provisions of law, it cannot correctly be said that respondent Judge had acted with grave abuse of discretion when he allowed Atty. Romanillos to act as private counsel and Atty. Regalado, Provincial Attorney of Bulacan, to appear as counsel for respondent Municipality of Baliuag. Perforce, it also cannot be correctly said that respondent Judge violated the aforecited provisions when he denied petitioners' motion to declare null and void the proceedings undertaken by and participated in by Atty. Romanillos as private counsel of the municipality of Baliuag.At any rate, even granting, only for the sake of argument, that Atty. Romanillos' appearance as counsel for the municipality could not be legally authorized under the aforesaid provisions of law, the fact that Atty. Regalado as Provincial Attorney of Baliuag had formally adopted the proceedings participated in by Atty. Romanillos as counsel for the municipality of Baliuag had served, as already stated, to cure such a defect.llcdThirdly, We are likewise unable to see grave abuse of discretion in respondent Judge's actuation in granting the joint motion filed by Atty. Romanillos and Atty. Regalado for the withdrawal of the former as private counsel of respondent municipality, and the adoption by the latter of the proceedings participated in/undertaken by the former, including the formal offer of evidence submitted by the former."Public respondent likewise found that the "joint motion does not partake of the nature of an adversarial motion which would have rendered non-compliance with Sections 4 and 5 of Rule 15 of the Rules of Court fatal to the motion."9It is to be emphasized that petitioners "sought the disqualification of Atty. Romanillos . . . (Thus,) what petitioners had sought to (be) achieve(d) in their said motion was in fact what Atty. Romanillos had sought . . . in the joint motion dated August 22, 1990."10Respondent municipality submits thatSection 19 ofRA 5185:"is not meant to prohibit or prevent the Provincial Attorney to act as legal adviser and legal officer for municipalities and municipal districts because such interpretations would be to say the least, absurb (sic). In this jurisdiction, a province is composed of municipalit