G.R. No. L-16494; August 29, 1961
PRISCILLA FERNANDEZ-SUBIDO, petitioner-appellant, vs. ARSENIO LACSON, as Mayor of Manila, respondent-appellee.

FACTS

Petitioner Priscilla Fernandez-Subido was a regular school physician in the Division of City Schools of Manila, paid from student fees. The Municipal Board of Manila enacted Ordinance No. 4033, creating four new positions of school physician at a higher salary within the Manila Health Department. Petitioner alleged that the ordinance was intended to appoint the four incumbent school physicians, including herself, in recognition of their service. However, respondent Mayor Arsenio Lacson appointed the other three incumbents but excluded petitioner. She claimed her exclusion was due to her brother-in-law’s political affiliation and criticism of the mayor, constituting a violation of civil service rules against political discrimination. The Municipal Board even passed a resolution recommending her appointment. Petitioner filed an action for mandamus and prohibition to compel her appointment and prevent the appointment of another.
The respondent mayor moved to dismiss the complaint, arguing that the power of appointment is a discretionary executive function not controllable by mandamus. The trial court granted the motion to dismiss. Hence, this appeal.

ISSUE

Whether the writ of mandamus may issue to compel the City Mayor to appoint the petitioner to one of the newly-created positions of school physician.

RULING

No, mandamus does not lie. The Court affirmed the dismissal. The legal logic proceeds from three key premises. First, the newly-created positions were distinct from petitioner’s former position. The ordinance expressly “created” positions that “never existed theretofore” within the Health Department, not the Division of City Schools. Appointments to the new positions were to be made by the Mayor, whereas appointments to her old position were made by the Secretary of Education. Therefore, petitioner had no legal right to the new position merely by virtue of her prior employment.
Second, the power of appointment vested in the Mayor by the city charter is an executive function involving discretion. Under the principle of separation of powers, the judiciary cannot interfere with the executive’s discretion in choosing appointees, absent a clear legal duty and a correlative clear legal right in the applicant. The ordinance did not designate petitioner or limit the Mayor’s choice to specific individuals; it merely authorized the creation of positions. Thus, the Mayor’s discretion in selecting appointees was broad and not subject to judicial control via mandamus.
Third, the special civil remedy of mandamus requires a clear legal right in the petitioner and a correlative ministerial duty in the officer. Petitioner’s claim, based on moral right or alleged unfair political discrimination, does not constitute a clear legal right enforceable by mandamus. Furthermore, the Court noted petitioner failed to exhaust administrative remedies, as she did not appeal the Mayor’s refusal to the President or the Department Head. The order of dismissal was therefore correct.