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EN BANC

G.R. No. L-15950 April 20, 1961

GERVACIO DAUZ, Petitioner-Appellant, vs. HON. FELIPE ELEOSIDA, ET AL., respondents-appellees.

Teodoro V. Nano for petitioner-appellant.
Felipe T. Eleosida and Epifanio Estrella for respondent-appellees.

BENGZON, Actg. C.J.:chanrobles virtual law library

Gervacio Dauz has appealed directly to this Court from the decision of the Cotabato court of first instance dismissing his petition for certiorari and prohibition. No factual questions are raised.chanroblesvirtualawlibrarychanrobles virtual law library

On November 25, 1958, this appellant was prosecution before the justice of the peace of Kidapawan, Cotabato, because being a general merchant in that locality, and as such required to pay license fees under the local Ordinance No. 21, series of 1956, he willfully failed to pay the second, third and fourth quarter fees for the year 1958.chanroblesvirtualawlibrarychanrobles virtual law library

Summoned to answer, Gervacio Dauz filed a motion quash on the ground that the facts charged did not constitute a criminal offense. The justice of the peace denied the motion. Whereupon, he instituted in the court of first instance this petition for certiorari and prohibition contending mainly that as he had paid the first quarter for year 1958, the remedy of the Government was to collect civil action - not a criminal prosecution - the other quarter fees, plus the surcharges which the same Ordinance had fixed.chanroblesvirtualawlibrarychanrobles virtual law library

The Hon. Juan A. Sarenas, judge, dismissed the petition, explaining that petitioner's remedy was to appeal, if he should after hearing on the merits, be convicted in the justice of the peace court.chanroblesvirtualawlibrarychanrobles virtual law library

We think His Honor acted correctly. There is no doubt that the complaint alleged violation of an ordinance; there is also no question that the ordinance provided the penalty of not more than P200.00 fine, or imprisonment not to exceed 6 months or both. So the offense, if any, was within the original jurisdiction of the justice of the peace court. [Republic Act 296, sec. 87].¹ Whether or not Dauz' having paid the first quarter for the year 1958 constituted a defense, is a matter which he should prove and discuss upon the trial on the merits, and if that defense should fail, the way is open for him to appeal to the court of first instance.chanroblesvirtualawlibrarychanrobles virtual law library

Needless to add, where appeal is available, certiorari and prohibition do not lie.chanroblesvirtualawlibrarychanrobles virtual law library

For these reasons, the decision dismissing Dauz' petition is hereby affirmed, with costs.chanroblesvirtualawlibrarychanrobles virtual law library

Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Dizon, JJ., concur.
Paredes, J., took no part.