CASE DIGEST

48 Avelino v Cuenco
Constitutional Law 1

Court Supreme Court
Citation G.R. No. L-2821.
Date March 4, 1949
Petitioner Jose Avelino
Respondent Mariano J. Cuenco
Relevant topic The Three Branches of Government: Congress
Organizations and Sessions
Relevant Term Quorum:
Article VI, Section 16 (2)
• Majority of each House shall constitute a quorum.
• A smaller number may adjourn from day to day and may compel the attendance of absent
members in such manner, and under such penalties, as such House may provide.
• In computing a quorum, members who are outside the country, thus outside of each
House’s coercive jurisdiction, are not included

FACTS:

• On February 18, 1949, Senator Lorenzo Tañada invoked his right to speak on the senate floor to formulate
charges against the then Senate President Jose Avelino. He requested to do so on the next session
(February 21, 1949).
• Although a sufficient number of senators to constitute a quorum were at the Senate session hall at the
appointed time (10:00 A.M.), and the petitioner was already in his office, said petitioner delayed the opening of
the session for about two hours. Upon insistent demand by Tañada, Mariano Cuenco, Prospero Sanidad and
other Senators, Avelino was forced to open session. He however, together with his allies initiated all dilatory
and delaying tactics to forestall Tañada from delivering his piece. Motions being raised by Tañada were being
blocked by Avelino and his allies. They even ruled Tañada and Sanidad, among others, as being out of
order.
• Avelino’s camp then moved to adjourn the session due to the disorder. Sanidad however countered and they
requested the said adjournment to be placed in voting. Avelino just banged his gavel and he hurriedly left his
chair and was immediately followed by his followers. Senator Tomas Cabili then stood up, and asked that it be
made of record — it was so made — that the deliberate abandonment of the Chair by Avelino, made it
incumbent upon Senate President Pro-tempore Melencio Arranz and the remaining members of the Senate to
continue the session in order not to paralyze the functions of the Senate. Tañada was subsequently
recognized to deliver his speech. Later, Arranz yielded to Sanidad’s Resolution (No. 68) that Cuenco be
elected as the Senate President.
• This was unanimously approved and was even recognized by the President of the Philippines the following
day. Cuenco took his oath of office thereafter. Avelino then filed a quo warranto proceeding before the
SC to declare him as the rightful Senate President and oust respondent Cuenco.

ISSUES-HELD:

ISSUES HELD
1. Whether or not the SC can take No.
cognizance of the case. • By a vote of 6 to 4, the SC held that they cannot take cognizance of the case. This is
in view of the separation of powers, the political nature of the controversy and the
constitutional grant to the Senate of the power to elect its own president, which power
should not be interfered with, nor taken over, by the judiciary.
• The SC should abstain in this case because the selection of the presiding officer
affects only the Senators themselves who are at liberty at any time to choose their
officers, change or reinstate them. Anyway, if, as the petition must imply to be
acceptable, the majority of the Senators want petitioner to preside, his remedy lies in
the Senate Session Hall — not in the Supreme Court.
2. WON Resolutions Nos. 68 Yes.
and 67 were validly • Useless to pass on these questions since the Court has no
approved. jurisdiction over the case. Supposing the Court had jurisdiction, what
follows is the opinion of the Court.
Resolution No. 67, Exhibit "2", which read as • Ultimately, the question is “Was there a valid quorum?”
follows:
RESOLUTION DECLARING VACANT THE 1. Yes, there is a valid quorum because the so-called rump session is a
POSITION OF THE PRESIDENT OF THE continuation of the morning session and that a minority of 10
SENATE AND DESIGNATING THE senators leaving the Senate hall may not prevent the other 12
HONORABLE MARIANO JESUS CUENCO senators from passing a resolution that met with their unanimous
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CASE DIGEST
48 Avelino v Cuenco
Constitutional Law 1
ACTING PRESIDENT OF THE SENATE.
Section 1, Rule 68, of the Rules of Court
provides: "An action for the usurpation of
office or franchise may be brought in the
name of the Republic of the Philippines
against:
(a) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
or a franchise, or an office in a corporation
created by authority of law;
endorsement.
2. If the rump session was not a continuation of the morning session,
was it validly constituted? Meaning, was there a majority required by
the Constitution for the transaction of the business of the Senate?
YES.
a) Because the minutes says so
b) Because at the beginning of the rump session there were at least 14
Senators (including Senators Pendatun and Lopez)
c) Because 12 senators constitute a majority of the Senate of 22
senators
d) The Constitution declares that “A majority of “each House” shall
constitute a quorum to do business” (Sec 10, Sub-section 2, Art VI)
Ø “The House” does not mean “all” the members
Ø There is a difference between a majority of “all the members of the
House” and a majority of “the House”, the latter requiring less
number. (cf. FERIA’s concurring opinion)
Ø “Majority” refers to the number of members within the “jurisdiction” of
the Congress (those it can order arrested for the purpose of
questioning). In this case, one Senator was out of the Philippines,
which is not within the “jurisdiction” of the Senate, so that the
working majority was 23 Senators.
Ø For a bill to pass, only the majority of those present during the
session, there being a quorum, is required.

In fine, all the four justices agree that the Court being confronted with the
practical situation that of the twenty three senators who may participate
in the Senate deliberations in the days immediately after this decision,
twelve senators will support Senator Cuenco and, at most, eleven will
side with Senator Avelino, it would be most injudicious to declare the latter
as the rightful President of the Senate, that office being essentially one that
depends exclusively upon the will of the majority of the senators, the rule of
the Senate about tenure of the President of that body being amenable at any
time by that majority.

RULING:
The judgment of the Court is, therefore, that respondent Mariano J. Cuenco has been legally elected as Senate
President and the petition is dismissed, with costs against petitioner.

Other notes:
MOST IMPORTANT TO NOTE: This case is the authority for the principle that the basis in determining the
existence of a quorum in the Senate shall be the total number of Senators who are in the country and within
the coercive jurisdiction of the Senate.

Basis of quorum: Everyone authorized by the House to be absent are not to be included as a base number for quorum
–but a senator not counted in the quorum is still a senator.

Some Justices argue that the majority of said senators cannot be less than thirteen, but others do not consider
Senator Confesor to be part of the list of senators as he is in another jurisdiction, the United States.

FERIA, concurring
• Art 3 Title VI of the 1935 Constitution provided that “the majority of all the members of the National Assembly
constitute a quorum to do business”
o Amended in 1939 to read: “a majority of each House shall constitute a quorum to do business”
• Shows intent of framers to base the majority not on the number fixed or provided for in the but on actual
members of incumbents, and this must be limited to actual members who are not incapacitated to
discharge their duties by reason of death, incapacity, or absence from the jurisdiction of the House, or
for other causes which make attendance of the member concerned impossible, even through coercive
process which each house is empowered to issue to compel its members to attend the session in order to
constitute a quorum.

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