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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 respondents- appellees.

DECISION

BENGZON, Actg. C.J : p

Gervacio Dauz has appealed directly to this Court from the decision of the
Cotabato court of rst instance dismissing his petition for certiorari and
prohibition. No factual questions are raised.
On November 25, 1958, this appellant was prosecuted 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.
Summoned to answer, Gervacio Dauz led a motion to quash on the ground that
the facts charged did not constitute a criminal oense. The justice of the peace
denied the motion. Whereupon, he instituted in the court of rst instance this
petition for certiorari and prohibition contending that as he had paid the rst
quarter for the year 1958, the remedy of the Government was to collect by civil
action not a criminal prosecution the other quarter fees, plus the surcharges
which the same Ordinance had xed.
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.
We think His Honor acted correctly. There is no doubt that the complaint alleged
violation of the ordinance; there is also no question that the ordinance provided
the penalty of not more than P200.00 ne, or imprisonment not to exceed 6
months or both. So the oense, 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 rst quarter for the 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 rst
instance.

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Needless to add, where appeal is available, certiorari and prohibition do not lie.
For these reasons, the decision dismissing Dauz' petition is hereby armed, with
costs.
Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Dizon,
JJ., concur.
Paredes, J., took no part.

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