[21] SUMMERS V OZAETA o Petitioner argued that the president, on his own initiative and without the

GR NO. L-1534 | OCTOBER 25, 1948 knowledge or consent of the petitioner, appointed petitioner to the ad interim
Paras position of judge-at-large.
 SC: Petitioner was at complete liberty to decide whether or not he would
accept the offer. However it is not contended whether he was compelled to
PETITIONERS/PROSECUTORS: Ricardo Summers accept the position. The Court cited Zandueta v. De la Costa.2
RESPONDENTS/DEFENDANTS: Roman Ozaeta, Secretary of Justice, and Manuel Agregado,
Auditor General o Petitioner’s voluntary acceptance of the position conseuquent upon taking of his
oath of office amounted to a waiver of his right to hold the position of cadastral
TOPIC: If CA Confirmation Required: Regular or Ad Interim judge during the term fixed and guaranteed by the Constitution.
 In Zandueta v. Dela Costa, the Court held: "when a judge of first instance,
presiding over a branch of a Court of First Instance of a judicial district by
FACTS:
virtue of a legal and valid appointment, accepts another appointment to
 Petitioner was a cadstral judge. He received an ad interim appointment for the position preside over the same branch of the same Court of First Instance, in addition
of judge-at-large of first instance by the Secretary of Justice. to another court of the same category, both of which belong to a new judicial
district formed by the addition of another Court of First Instance to the old
 His appointment was disapproved by the Commission on Appointment. The Secretary of one, enters into the discharge of the functions of his new office and receives
Justice then informed him that he was separated from service. He seemed to have the corresponding salary, he abandons his old office and cannot claim to be
acquiesced to the separation as can be inferred “from the facts”. His only effort was entitled to repossess it or question the constitutionality of the law by virtue of
trying to be reappointed to one of the vacancies in the Court of First Instance. which his new appointment has been issued; and, said new appointment
having been disapproved by the commission on Appointments of the National
 Petitioner argues that under Article VIII, Section 9 of the Constitution, 1 he is entitled to Assembly, neither can he claim to continue occupying the office conferred
continue working as a cadastral judge during good behavior until he is 70 years old or upon him by said new appointment, having ipso jure ceased in the discharge
becomes incapacitated to discharge his duties. of the functions thereof.

 He further argued that the positions of cadastral judge and judge-at-large are not o Further, ad interim appointments are made pursuant to Article VII, section 10 (4) of
incompatible and that the fact that he accepted the latter position did not mean that he the Constitution: “President shall have the power to make appointments during the
ceased to be a cadastral judge, especially since his appointment was disapproved by the recess of the Congress, but such appointments shall be effective only until
CA. disapproval by the Commission on Appointments or until the next adjournment of
the Congress."
ISSUES AND RULING:  Austria v. Amante: It is an appointment permanent in nature, and the
1. W/N Summers ceased being a cadastral judge by accepting the ad interim position of circumstance that it is subject to confirmation by the Commission on
judge-at-large – YES Appointments does not alter its permanent character. An ad interim
appointment is disapproved certainly for a reason other than that its
o There can be no doubt about the constitutional right of member of the Supreme provisional period has expired. Said appointment is of course distinguishable
Court and judge of inferior court to hold offices during good behavior until they from an "acting" appointment which is merely temporary, good until another
reach the age of seventy years or become incapacitated to discharge the duties of permanent appointment is issued.
their office.  Petitioner cannot invoke Santiago v. Agustin since Santiago was a member of
o However, citing the concurring opinion of Justices Pablo, Perfecto and Hilado in the municipal board of Manila and was designate as the Acting Mayor.
Tavora v. Gavina and Arciaga, the right is waivable and should be construed
without prejudice to the legal effects of abandonment in proper cases.

2 the petitioner was free to accept or not the ad interim appointment issued by the President … While the office of
judge of first instance is of public interest, being one of the means employed by the Government to carry out one of its
purposes, which is the administration of justice, considering the organization of the courts of justice in the Philippines
and the creation of the positions of judge-at-large or substitutes, the temporary disability of a judge may be
1Section 9. The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from immediately remedied without detriment to the smooth running of the judicial machinery. If the petitioner believed, as
a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no he now seems to believe, that Commonwealth Act No. 145 is unconstitutional, he should have refused to accept the
confirmation. appointment offered him or, at least, he should have accepted it with reservation, had he believed that his duty of
obedience to the laws compelled him to do so, and afterwards resort to the power entrusted with the final
For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. determination of the question whether a law is unconstitutional or not
o ITC, the safer course to follow would have been for him to await the confirmation magistrates in the township, and it would become wholly without force
of the ad interim appointment before qualifying for and assuming the position of and effect.
judge-at-large.
 A hasty acceptance on the part of an ad interim appointee, in the anxiety to DISPOSITIVE: The petition will be, as the same is hereby dismissed without costs. So
enjoy either the higher honor or better material advantages of a second office, ordered.
may lead to seemingly unfair consequences for which the appointing power
should not be blamed.
J. Perfecto, dissenting:
 While in the ordinary course of things, an appointee certainly has the right to
rely on his record and expect the approval of his appointment, it is
nevertheless the better part of wisdom for one always to adopt the surer The theory of incompatibility is inconsistent and does not dovetail with the same theory of
method which will, furthermore, protect him against any design, intentional or this very Supreme Court in the Santiago case, where this Court did not say anything
otherwise, to oust him from an office the tenure of which is fixed by the incompatible with Santiago case, where this Court did not say anything incompatible with
Constitution. Santiago's functions as member of the Municipal Board where he was only a member of a
deliberative body with semi-legislative function of enacting ordinances, and his position as
o Petitioner’s argument that the acceptance of a second office may be considered as
Mayor of Manila, with executive functions to execute and enforce not only ordinances but
a vacation.
 Under the comparison presented by the petitioner, the situation before us is the laws enacted by the legislature. If there was no incompatibility in the Santiago case, it is
undoubtedly not one wherein he may appropriately hold two compatible beyond comprehension of a reasonable person that an incompatibility could be seen in the
offices at one time such, for instance, as the positions of town recorder and Zandueta case, unless upon the assumption, which must be rejected, that in Santiago case
county and probate judge (State ex rel. Murphy vs. Townsend, 79 S. W., 782), the Supreme Court acted blindly, or in the Zandueta case, it tried to see reality in a ghost.
but one wherein he cannot legally hold two offices of similar category at the
same time, like two positions of judge of first instance. That constitutional guarantee of permanent tenure of office is also given to judges under the
 At least, the petitioner does not contend that he can simultaneously occupy
terms of section 9 of Article VIII of the Constitution, with the difference that the causes for
the position of cadastral judge and the office of judge-at-large, for this would
of course be clearly against public policy. The law has created a fixed number their removal from office are limited to those mentioned in section 1 of Article IX and cannot
of cadastral judges (Republic Act No. 156 and Executive Order No. 94, at be changed by laws enacted by Congress.
P8,400 per annum each), and a fixed number of judge-at-large (Republic Act
No. 156 and Executive Order No. 94, at P9,000 per annum each), and The guarantee for aa relatively permanent tenure of office in favor of officers and employees
considerations of public interest must have been the basis thereof. in the civil service and judicial officers is for the purpose of protecting them against the
 If the petitioner can be a cadastral judge and a judge-at-large at the same
powerful who may seek their removal out of spite or revenge because of an unfavorable
time, the judicial positions as specified and created by law will be diminished
by one. action that, in the performance of official duty, the officer, employee, or the judge had to
 This is a strong and authoritative declaration of public policy and it is said take in obedience to law and to the dictates of conscience. The guarantee is even stronger in
elsewhere that the incompatibility 'which shall operate to vacate the first favor of judges for the very strong reasons that judicial independence is universally
office exists where the nature and duties of the two offices are such as to recognized as indispensable for the effective administration of justice.
render it improper from consideration of public policy for one person to retain
both.' (Mechem, Pub. Off., section 422 and cases.) J. Briones, dissenting:
 And is State ex rel. Crawford vs. Anderson, 155 Iowa, 271, 136 N. W., 128, the
same rule was stressed: "It is apparent from these several provisions of the
law that the lawmaking power considered it for the public good and It seems better, much better, the theory of openness. If the Judge accepts an appointment of
convenience to have three judicial officers in every township containing within the Executive within the same judiciary and after that appointment is not approved by the
its geographical limits an incorporated city, town, and that in criminal Appointments Committee for reasons that do not constitute grounds for dismissal against
prosecutions under statute, these officers should have the same jurisdiction. the Judge, the best theory is that that acceptance is not interpreted against him , but be
And if this be true, can this plain purpose be thwarted by permitting one man returned to its previous destination. In other terms, a theory should not be accepted if one
to hold two of these offices? allows the removal of the Judge by indirect method such as a new appointment. If there is
 We think not, because the two offices are, in our judgment, incompatible
something against the Judge, the procedures indicated in the constitution and the laws for its
when viewed in the light of the public policy expressed in the statutes
creating them and defining their powers and duties. To hold otherwise removal must be strictly followed.
would be to say that, in certain instances, there should be but two