Facts:
Marcos M. Calo filed the petition for injunction and damages to restrain and prevent respondent Francisco Magno, Acting Treasurer of Butuan City, from enforcing an order of distraint and levy issued by respondent on petitioner's properties for the collection of real property taxes in the sum of P797.91. It is alleged in the petition that respondent had no authority to collect the taxes or to issue the order, because respondent's appointment and/or designation as acting city treasurer is contrary to the provisions of Republic Act No. 523, otherwise known as the Charter of the City of Butuan, and therefore null and void. Petitioner also asks that respondent's appointment be declared invalid. The CFI of Agusan denied the injunction for the reason the Commonwealth Act No. 588, the President may appoint in case of a “vacancy in the position”. On appeal, the CA certified the case to the Supreme Court as on involving purely question of law.
Issue:
Whether or notthe appointment of Magno is appropriate
Ruling:
Yes. The designation of Battad to the Department of Finance created a vacancy in the office of city treasurer of Butuan, which vacancy may be filled permanently or temporarily, by the President under Comm. Act 588. There being a vacancy in said office, it may not be considered as a mere absence or inability of the incumbent to act where the next ranking officer may perform the duties of the absent officer.
In the case of Rodriguez vs. Del Rosario, 49 O.G., p. 5427, Oct. 30, 1953, we held that the temporary designation of the Mayor of Cebu as technical assistant in Malacañang had the effect of depriving the incumbent mayor of his position as mayor, which said incumbent mayor could accept or reject; but that when he thereafter demanded back his position as city mayor, this act of his amounted to his renunciation of his position as technical assistant in which he could not be compelled to stay. These acts of his therefore did not amount to a renunciation by him of his position as mayor. Conversely, in the case at the bar, as the previous incumbent Battad was designated to the department of finance with the approval of the President and the President thereafter appointed respondent Magno as the acting city treasurer of Butuan, who thereafter took oath of office without any express objection on the part of former City Treasurer Battad, the former incumbent was deemed to have accepted the designation and thus abandoned the position of city treasurer. So that when the President appointed the respondent Magno as acting city treasurer of Butuan the position of said treasurer had become vacant by the renunciation of the position by former treasurer Battad.
There was, therefore, a vacancy in the office of the city treasurer of Butuan when Battad was designated to the Department of Finance by action of the secretary of finance and of the President. Battad was not merely absent or sick or unable to act for any other reason within the meaning of Sec. 18 of the Charter of the City of Butuan, and the provision of said Charter authorizing the officer next in charge in the department to perform the duties of the previous incumbent is not applicable.
The action may be dismissed also on the ground that no action lies to enjoin the collection of a tax.
Marcos M. Calo filed the petition for injunction and damages to restrain and prevent respondent Francisco Magno, Acting Treasurer of Butuan City, from enforcing an order of distraint and levy issued by respondent on petitioner's properties for the collection of real property taxes in the sum of P797.91. It is alleged in the petition that respondent had no authority to collect the taxes or to issue the order, because respondent's appointment and/or designation as acting city treasurer is contrary to the provisions of Republic Act No. 523, otherwise known as the Charter of the City of Butuan, and therefore null and void. Petitioner also asks that respondent's appointment be declared invalid. The CFI of Agusan denied the injunction for the reason the Commonwealth Act No. 588, the President may appoint in case of a “vacancy in the position”. On appeal, the CA certified the case to the Supreme Court as on involving purely question of law.
Issue:
Whether or notthe appointment of Magno is appropriate
Ruling:
Yes. The designation of Battad to the Department of Finance created a vacancy in the office of city treasurer of Butuan, which vacancy may be filled permanently or temporarily, by the President under Comm. Act 588. There being a vacancy in said office, it may not be considered as a mere absence or inability of the incumbent to act where the next ranking officer may perform the duties of the absent officer.
In the case of Rodriguez vs. Del Rosario, 49 O.G., p. 5427, Oct. 30, 1953, we held that the temporary designation of the Mayor of Cebu as technical assistant in Malacañang had the effect of depriving the incumbent mayor of his position as mayor, which said incumbent mayor could accept or reject; but that when he thereafter demanded back his position as city mayor, this act of his amounted to his renunciation of his position as technical assistant in which he could not be compelled to stay. These acts of his therefore did not amount to a renunciation by him of his position as mayor. Conversely, in the case at the bar, as the previous incumbent Battad was designated to the department of finance with the approval of the President and the President thereafter appointed respondent Magno as the acting city treasurer of Butuan, who thereafter took oath of office without any express objection on the part of former City Treasurer Battad, the former incumbent was deemed to have accepted the designation and thus abandoned the position of city treasurer. So that when the President appointed the respondent Magno as acting city treasurer of Butuan the position of said treasurer had become vacant by the renunciation of the position by former treasurer Battad.
There was, therefore, a vacancy in the office of the city treasurer of Butuan when Battad was designated to the Department of Finance by action of the secretary of finance and of the President. Battad was not merely absent or sick or unable to act for any other reason within the meaning of Sec. 18 of the Charter of the City of Butuan, and the provision of said Charter authorizing the officer next in charge in the department to perform the duties of the previous incumbent is not applicable.
The action may be dismissed also on the ground that no action lies to enjoin the collection of a tax.
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