Abandonment of Public Office -
"While we agree with Respondent Court that the resignation was not valid absent any acceptance thereof by the proper authority, we nonetheless hold that Private Respondent Antonio has effectively relinquished his membership in the Sangguniang Bayan due to his voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof.[32] Indeed, abandonment of office is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser.[33] Nonuser refers to a neglect to use a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to exercise an easement or an office (Blacks Law Dictionary, 6th ed.).
Abandonment springs from and is accompanied by deliberation and freedom of choice.[34] Its concomitant effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy.[35]
Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from his own conduct.[36] Thus, the failure to perform the duties pertaining to the office must be with the officers actual or imputed intention to abandon and relinquish the office.[37] Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such a continuance that the law will infer a relinquishment.[38] Therefore, there are two essential elements of abandonment: first, an intention to abandon and, second, an overt or external act by which the intention is carried into effect. [39]
Petitioner argues that the following clearly demonstrate private respondents abandonment of his post in the Sangguniang Bayan:
Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of Catanduanes was worded temporary, but his acts more than clearly established his intention to totally abandon his office, indicating an absolute relinquishment thereof. It bears to emphasize that respondent actually tendered his resignation and subsequently accepted an ex-officio membership in the Sangguniang Panlalawigan of Catanduanes. He performed his duties and functions of said office for almost two (2) years, and was completely aware of the appointment and assumption on July 18, 1990 of Nenito F. Aquino, who was then Vice-President of the Association of Barangay Councils (ABC) of San Andres, Catanduanes, as ex-officio member of petitioner Sangguniang Bayan representing the ABC.
x x x x x x x x x
Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed respondents former position for twenty (20) months, without him questioning the term of office of the former if indeed respondents designation as ex-officio member of the Sangguniang Panlalawigan was only temporary. Likewise, for almost eight (8) months after knowledge of the decision in Taule vs. Santos, et. al., Ibid., nullifying his designation as representative to the Sangguniang Panlalawigan, respondent opted to remain silent, and in fact failed to seasonably act for the purpose of reassuming his former position. Evidently, respondent had clearly abandoned his former position by voluntary relinquishment of his office through non-user.[40] [Underscoring supplied.]
We agree with petitioner. Indeed, the following clearly manifest the intention of private respondent to abandon his position: (1) his failure to perform his function as member of the Sangguniang Bayan, (2) his failure to collect the corresponding remuneration for the position, (3) his failure to object to the appointment of Aquino as his replacement in the Sangguniang Bayan, (4) his prolonged failure to initiate any act to reassume his post in the Sangguniang Bayan after the Supreme Court had nullified his designation to the Sangguniang Panlalawigan.
On the other hand, the following overt acts demonstrate that he had effected his intention: (1) his letter of resignation from the Sangguniang Bayan;[41] (2) his assumption of office as member of the Sangguniang Panlalawigan, (3) his faithful discharge of his duties and functions as member of said Sanggunian, and (4) his receipt of the remuneration for such post.
It must be stressed that when an officer is designated to another post, he is usually called upon to discharge duties in addition to his regular responsibilities. Indeed, his additional responsibilities are prescribed by law to inhere, as it were, to his original position. A Supreme Court justice, for instance, may be designated member of the House of Representatives Electoral Tribunal. In some cases, a public officer may be designated to a position in an acting capacity, as when an undersecretary is tasked to discharge the functions of a secretary for a temporary period.[42] In all cases, however, the law does not require the public servant to resign from his original post. Rather, the law allows him to concurrently discharge the functions of both offices.
Private respondent, however, did not simultaneously discharge the duties and obligations of both positions. Neither did he, at that time, express an intention to resume his office as member of the Sangguniang Bayan. His overt acts, silence, inaction and acquiescence, when Aquino succeeded him to his original position, show that Antonio had abandoned the contested office. His immediate and natural reaction upon Aquinos appointment should have been to object or, failing to do that, to file appropriate legal action or proceeding. But he did neither. It is significant that he expressed his intention to resume office only on March 31, 1992, after Aquino had been deemed resigned on March 23, 1992, and months after this Court had nullified his designation on August 12, 1991. From his passivity, he is deemed to have recognized the validity of Aquinos appointment and the latters discharge of his duties as a member of the Sangguniang Bayan.
In all, private respondents failure to promptly assert his alleged right implies his loss of interest in the position. His overt acts plainly show that he really meant his resignation and understood its effects. As pointed out by the eminent American commentator, Mechem:[43]
Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a short period will not operate as an abandonment, yet if the officer refuses or neglects to exercise the functions of the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to perform the duties of the office at all, he will be held to have abandoned it, not only when his refusal to perform was wilful, but also where, while he intended to vacate the office, it was because he in good faith but mistakenly supposed he had no right to hold it.
Lastly, private respondent, who remained ABC president, claims the legal right to be a member of the Sangguniang Bayan by virtue of Section 146 of B.P. Blg. 337. However, his right thereto is not self-executory, for the law itself requires another positive act -- an appointment by the President or the secretary of local government per E.O. 342.[44] What private respondent could have done in order to be able to reassume his post after Aquinos resignation was to seek a reappointment from the President or the secretary of local government. By and large, private respondent cannot claim an absolute right to the office which, by his own actuations, he is deemed to have relinquished.[45]
We reiterate our ruling in Aparri vs. Court of Appeals: [46]
A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public x x x. The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all, only because and by virtue of some law expressly or impliedly creating and conferring it x x x. There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary x x x."
[G.R. No. 118883. January 16, 1998]
SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE MAYOR NENITO AQUINO and MAYOR LYDIA T. ROMANO, petitioner, vs. COURT OF APPEALS and AUGUSTO T. ANTONIO, respondents.
