F.

De Facto Officers
The de facto doctrine.
A. The principle which holds that a person who, by the proper authority, is
admitted and sworn into office is deemed to be rightfully in such office until, by
judicial declaration in a proper proceeding, he is ousted therefrom, or his
admission thereto is declared void.

Basis and reason for the doctrine

A. 1) Springs from the fear of the chaos that would result from multiple and
repetitious suits challenging every action taken by every official whose claim to
office could be open to question, and
2) Seeks to protect the public by insuring the orderly functioning of the
government despite technical defects in title to office

De facto officer defined

A. One who has the reputation of being the officer he assumed to be and yet
is not a good officer in point of law.
Q. Where the duties of the office are exercised:
A. (1) without a known appointment or election, but under such circumstances of
reputation or acquiescence as were calculated to induce people, without inquiry,
to submit to or invoke his action, supposing him to be the officer he assumed to
be; or
(2) under color of a known and valid appointment or election, but where the
officer has failed to conform to some precedent requirement or condition,
such as to take an oath, give a bond, or the like; or
(3) under color of a known election or appointment, void because the officer was
not eligible, or because there was a want of power in the electing or
appointing body, or by reason of some defect or irregularity in its exercise,
such ineligibility, want of power, or defect being unknown to the public; or
(4) under color of an election or an appointment by or pursuant to a public,
unconstitutional law, before the same is adjudged to be such
A. One who is in possession of an office in the open exercise of its functions
under color of an election or an appointment even though such election or
appointment may be irregular or informal, so that the incumbent is not a mere
volunteer
De jure officer defined.
A. One who has the lawful right to the office in all respects, but who has
either been ousted from it, or who has never actually taken possession of it.
Q. What is the effect when the officer de jure is also the officer de facto?
A. The lawful title and possession are united
A. There cannot be two de facto incumbents of one office at the same
time, and where two are acting simultaneously, each under claim of right,
the owner who appears to have the better legal title will alone be
recognized

Requirements to become officer de jure

A. (1) He must possess the legal qualifications for the office in question;
(2) He must be lawfully chosen to such office; and
(3) He must have qualified himself to perform the duties of such office according
to the mode prescribed by the Constitution or law.

Officer de jure and officer de facto distinguished.

Main difference – basis of authority
Officer de jure
rests on right
has the lawful right or title to the office
cannot be removed in a direct proceeding
There must be an office to fill
While there can be no de facto officer where there is no de jure office, there may be a de facto
officer in a de jure office.
Officer de facto
rests on reputation
has the possession and performs the duties
under color of right or authority without
being technically qualified in all points of law
to act
ousted in a direct proceeding

Usurper or intruder defined.

A. One who takes possession of the office and undertakes to act officially without
any color of right or authority, either actual or apparent.
He is NOT AN OFFICER at all for any purpose.
Officer de facto and usurper distinguished.
Officer de facto Usurper
has a color of right or title to the office has neither lawful title nor color of right or
title to the office
assumes to exercise his functions where the assumes to act as an officer where the public
public does not know nor ought to know his knows or ought to know that he is such a
lack of title or authority usurper
may be removed only in a direct proceeding can be ousted at any time in any proceeding;
(quo warranto)
All acts otherwise legitimate done by a de Acts are absolutely null and void.
facto officer in the exercise of his authority as
such are valid like those of a de jure officer
insofar as the rights of the public and third
persons are concerned
Q. What distinguishes an officer de facto from a usurper?
A. The color of authority not the color of title
Q. May A usurper grow into an officer de facto?
A. YES, if his assumption of the office is acquiesced in.
This happens when he continues to act for so long a time as to afford a
strong presumption that he has been duly appointed or elected, and, therefore, the
right to act.

Double occupancy of a single office.

A. There cannot be an officer de jure and another officer de facto in
possession of the same office at the same time.

Elements of de facto officership.

(1) There must be a de jure office
Q. Instances where this rule was applied
A. (a) where persons assume to act as incumbents of offices which have been
abolished or under authority of statutes which have been repealed;
(b) where there is no law or ordinance even attempting to create an office;
 (c) where the de jure officer whom the purported de facto officer replaced did not
resign in the manner required by law, so that there was no de jure office to be
filled; or
(d) where statutory conditions of the creation of the office have not been complied
with;
(2) There must be a color of right or general acquiescence by the public
Q. What is The color of right which constitutes one an officer de facto”
A. It may consist
1) in an election or appointment, or
2) in holding over after the expiration of one's term, or
3) acquiescence by the public in the acts of such officer for such a length of time
as to raise the presumption of colorable right by election or appointment.
Q. What is the effect of The non-existence of any general reputation or recognition
as a public officer?
A. It may be in itself enough to prevent the courts from giving such status to
one who claims to hold the office
(3) There must be actual physical possession of the office in good faith.
A. And accompanied by the faithful exercise of the functions of the office
and discharge of its duties, since possession alone makes the possessor a mere
intruder or usurper whose acts in the office are wholly void

Office created under an unconstitutional statute.

(1) View that occupant not even officer de facto.
A. Thus he is merely a usurper and his acts are void
(2) Contrary view
A. The general rule will not be followed where strict adherence thereto would
lead to uncertainty, chaos, and confusion, great public inconvenience, or great
hardship to litigants.
A. Where an office is provided for by an unconstitutional statute, the
incumbent, for the sake of public policy and the protection of private rights, will
be recognized as an officer de facto until the unconstitutionality of the act has
been judicially determined
Legal effects of acts of de facto officers.
(1) As regards the officers themselves
A. The acts of a de facto officer as far as he himself is concerned are void,
and a de facto officer cannot justify his acts as binding or valid in any suit to
which he is a party
(2) As regards the public and third persons
A. Acts of a de facto officer are valid as to third persons and the public until
his title to office is adjudged insufficient, and such officer's authority may not be
collaterally attacked or inquired into by third persons affected.
A. There is no difference between the acts of de facto and de jure officers so
far as the public and third persons are concerned.
Q. Third persons
A. Have a right to assume that officials apparently qualified and in office are
legally such.

Proceedings to try right or title of a de facto officer

A. Only in a direct proceeding brought to determine the very question of his
title and the validity of his acts
A. GR: quo warranto is the remedy to be applied
XPN: A special statutory remedy has been substituted in its place.
Q. Who may institute quo warranto proceedings?
A. 1) only by the person who claims to be entitled to the office or
2) by the Republic of the Philippines represented by the Solicitor General or a
public prosecutor
A. The law specifically requires a special civil action of quo warranto in the
name of the Republic of the Philippines or in the name of the person claiming
right or title to a public office or position be brought against a person illegally
holding a public office. Right to compensation of a de facto officer
Q. What is required of An individual who files quo warranto proceedings?
A. He must set forth the name of the person who claims to be entitled to the
office and that of the defendant who is unlawfully in possession thereof and those
who claim to be entitled to the same office may be made parties in order to
determine their respective rights to the office in the same action.
 An individual cannot oust two or more persons although the latter are
holding illegally their office unless he is entitled to both of them

Right to compensation of a de facto officer.

(1) General rule
A. A de facto officer cannot maintain an action to recover the salary, fees,
or other emoluments attached to the office, even though he has performed the
duties thereof on the theory that the acts of a de facto officer as far as he himself
is concerned are void.
A. Only an officer de jure can maintain an action for compensation.
(2) Exception
A. 1) in good faith
2) renders the services required of the office
A. Such de facto officer may
1) recover the compensation provided by law for such services during the period
of their rendition, or
2) retain the emolument's received during that time or is legally entitled to the
emoluments of the office
Q. (a) If payment of the salary or other compensation be made by the
government, in good faith, to the officer de facto, while he is still in
possession of the office
A. The government cannot be compelled to pay it a second time to the
officer de jure where he has recovered the office, at least where the officer
de facto held by color of title
Q. (b) Disbursing officers charged with the payment of salaries
A. They have a right to rely upon the apparent title, and treat the
officer who is clothed with it as the officer de jure, without inquiring
whether another one has the better right
A. This rule does NOT apply where the officer was not appointed but merely
designated
Designation does not entail payment of additional benefits or grant upon
the person so designated the right to claim the salary attached to the position
Usurper – no right to salary, if he received any, he is liable to return them to the de jure offfice
Liabilities of a de facto officer.
(1) Generally held to the same degree of accountability for official acts as a de jure officer and
cannot escape liability because he has not qualified for failure to file a bond
(2) liable for all penalties imposed by law
a) for usurping or unlawfully holding office, or
b) for exercising the functions thereof without lawful right or without being qualified
according to law.
(3) He cannot excuse his responsibility for crimes committed in his official capacity by asserting
that he was an officer de facto
(4) He is liable when the rightful incumbent of a public office seeks to recover the salary
received by the former during the time of his wrongful tenure, even though he (the de facto
officer) occupied the office in good faith and under color of title
(a) He takes the salaries at his risk and must, therefore, account to the de jure officer for
whatever salary he received during the period of his wrongful tenure

Chapter Four
POWERS, DUTIES, AND NORMS OF CONDUCT OF PUBLIC OFFICERS
Compensation – merely incidental, attached to the office but not to the officer itself
Scope of power of a public office
A. (1) expressly conferred upon him by the law under which he has been appointed
or elected;
(2) expressly annexed to the office by the law which created it or some other law
referring to it; or
(3) attached to the office as incidents to it
Classification of powers and duties.
(1) From their nature.
(a) Ministerial
A. Official duty is ministerial when it is absolute, certain, and
imperative involving merely execution of a specific duty arising from
fixed and designated facts
(b) Discretionary
 A. Necessarily require the exercise of reason in the adaptation of
means to an end, and discretion in determining how or whether the act
shall be done or the course pursued
(2) From the standpoint of the obligation of the officer to perform his powers and duties.
(a) Mandatory
A. Where they are for the benefit of the public or individuals
(b) Permissive
A. If the act does not affect third persons and is not clearly beneficial
to the public, permissive words will not be construed as mandatory
(3) From the standpoint of the relationship of the officer to his subordinates.
(a) Power of control.
(b) Power of supervision