G.R. No. L-29458 March 28, 1969
VIRGINIA F. PEREZ, petitioner, vs. HON. RAFAEL DE LA CRUZ, REYNALDO BORJA, ROBERTO RUELO, FELICISIMO DE ASIS and CARLOS DEL CASTILLO, respondents.

FACTS

Virginia F. Perez, the Vice-Mayor of Naga City, expressed her intention, during conferences on January 8 and 10, 1968, to vote as a member of the Municipal Board in the selection of the board secretary and committee chairmen to create a tie vote and then, as presiding officer, to break that deadlock. On January 15, 1968, four Nacionalista Party councilors (Reynaldo Borja, Roberto Ruelo, Felicisimo de Asis, and Carlos del Castillo) filed a petition for prohibition with preliminary injunction in the Court of First Instance of Camarines Sur (Civil Case 6504) to prevent Perez from voting except to break a tie. They argued the Vice-Mayor is only the presiding officer, not a member, of the Board. Respondent Judge Rafael de la Cruz issued a writ of preliminary injunction on January 22, 1968, restraining Perez from voting except in case of a tie. Perez filed a motion to dismiss, which was denied. She then filed a petition for certiorari with the Court of Appeals, which dismissed it for lack of jurisdiction. Perez subsequently filed the present petition for certiorari and prohibition with the Supreme Court.

ISSUE

1. Is the Vice-Mayor of Naga City, besides being the presiding officer of the Municipal Board, also a member thereof? Corollary thereto, can she vote twice: to create a deadlock and then to break it?
2. Did the respondent judge have jurisdiction to issue the writ of prohibitory injunction against Perez?

RULING

1. No, the Vice-Mayor of Naga City is not a member of the Municipal Board. The charter of Naga City (Republic Act 305) originally composed the Board of the Mayor (as presiding officer), the city treasurer, the city engineer, and five elected councilors. It did not provide for the office of Vice-Mayor. Republic Act 2259 later created the position of Vice-Mayor in chartered cities and designated the Vice-Mayor as the presiding officer of the city council or municipal board. This law did not, however, make the Vice-Mayor a member of the board. The Vice-Mayor merely succeeded to the position of presiding officer, not to the membership held by the Mayor under the old charter. The power to break a tie vote is a prerogative of the presiding officer and does not imply membership. Furthermore, the Vice-Mayor cannot vote twice—first to create a tie and then to break it. The tie-breaking vote can only be exercised when a tie exists independently of the presiding officer’s vote.
2. Yes, the respondent judge had jurisdiction to issue the writ. The act sought to be enjoined—the Vice-Mayor’s threat to vote as a member of the Board—was a positive act amounting to usurpation of a power she did not possess. This was not a mere error in the exercise of jurisdiction but an act in excess of jurisdiction, which is a proper subject for prohibition. The councilors had a clear legal right to prevent the Vice-Mayor from unlawfully exercising a power, and the writ was necessary to prevent a cloud on the legality of the Board’s proceedings and to avoid confusion in public records. The issuance of the preliminary injunction was thus within the court’s jurisdiction to prevent an alleged unlawful exercise of authority.