ERNESTO GARDINER, PROTESTANT AND APPELLANT, VS. GREGORIO ROMULO, PROTESTEE AND APPELLEE.

An appeal from a judgment of the Court of First Instance in an election
protest for the office of provincial governor of the Province of Tarlac. In the
short opinion heretofore rendered by this court^[1] the entire election held in the
municipality of Camiling was annulled. It is our purpose, in this opinion to set
out our reason for taking such action.

An examination of the record convinced us that the frauds and irregularities
occurring in the conduct of the election in this municipality were very
numerous. They may be grouped under the following general headings: (1)
Irregularities in the selection of polling stations and the construction of the
voting booths; (2) the disappearance of blank ballots after delivery thereof to
the municipal treasurer, and the subsequent markings of the remainder by the
various election boards; (3) frauds practiced by the inspectors in the
preparation of the ballots of illiterate voters; (4) other irregularities and
frauds in connection with the preparation and counting of the ballots; (5)
intimidation and threats employed by Romulo and his partisans on the day of the
election.

1. A preliminary question is raised by the appellee as to whether evidence as
to the disregard of the Election Law in the selection of polling stations and
the construction of the voting booths was admissible under the allegations of
the motion or petition by which the protestant instituted his contest. An
election contest under section 27 of the Election Law is a special summary
proceeding, the object of which is to expedite the settlement of the controversy
between candidates as to who received the majority of the legal ballots in an
election for a specified office. In Arnedo vs. Llorente (18 Phil. Rep., 257) it
was held that rules of procedure applicable to ordinary civil actions can only
apply to election contests instituted under section 27 of the Election Law where
they are not inconsistent with the provisions of that section, or to meet an
exigency not provided for in the skeleton procedure there outlined. While we are
of the opinion that the motion by which the contestant introduces the
proceedings should be sufficiently comprehensive to apprise his adversary of the
frauds or irregularities upon which he relies to obtain a revision of the
official results, in order that the contestee may intelligently prepare his
defense, there appears to be no good reason for insisting upon a more stringent
application of the rule of allegata et probata in an election contest
than in an ordinary civil action. Under the liberal provisions of the reformed
procedure, this rule of evidence, which, under the common law, was most rigid,
has been greatly relaxed, and it is now well settled that a variance between the
allegations and the proof is immaterial unless the opposite party has actually
been misled or surprised thereby to his prejudice. The truth of the evidence
objected to is expressly admitted in various stipulations of counsel for the
opposing parties during the progress of the trial. The protestee does not object
to the admission of this evidence upon the ground that he was misled by it or
that it surprised him. His objection is the purely technical one that the motion
which instituted the proceedings did not refer to it. Under such circumstances,
and without considering whether his objection would have been sufficient had the
proceedings been an ordinary civil action, we do not hesitate to say that the
evidence was properly admitted. Technicalities are regarded with disfavor, even
in ordinary civil actions. Theyshould receive still less attention in such a
summary proceeding as an election contest.

The evidence objected to is thus summarized in the opinion of the lower
court: “The condition of the polling places in the municipality of Camiling were
as follows: The rooms intended for polling places in each of the five
precincts of Camiling were located in the upper stories of the respective
buildings, and it was necessary to climb a stair in order to enter the said
booths. Inocencio Guinto describes how the voting booths were constructed,
‘There was,’ he says, ‘a wire which ran from one side of the room to the other
and the rods were fastened at one end of a wire the other end of which was
attached to the wall. The curtains or cloth partitions were hung on the rod
there was between the wire and the wall. The piece of cloth used as a division
of the booths was 1 yard wide and was hung in such a manner that its lower
border was about a foot from the floor. There was nothing at the entrance of
the booths and in front of the entrances there was no guard rail. The only
guard rail in each of the polling places was that intended for the election
inspectors, and was in another separate room. In each and all of the five
precincts of this municipality the voting booths were arranged in that same
manner. In each booth there was a school bench used as a writing table by
the voters.'”

In addition to this it may be said that from the testimony of the various
witnesses it was proved that the school desks placed in each booth were so
arranged that the voter sat facing the side of the booth, so that anyone passing
along the row of booths could easily see what was being written by the voter if
he took the trouble to look.

Section 9 of Act No. 1582 provides: “* * * Each such [polling] place so
designated shall, if practicable, be a room upon the lower floor, of
reasonable size, sufficient to admit and comfortably accommodate twenty electors
at one time outside the guard rails * * *.

“There shall be in each polling place during each election a sufficient
number of voting booths, not less than one for every fifty voters in the
election precinct. Each such booth shall be at least one meter square, shall
have four sides inclosed, each at least two meters high, and the one in
front shall open and shut as a door swinging outward and shall extend to
within fifty centimeters of the floor. Each such booth shall contain a shelf
which shall be thirty centimeters wide extending across one side of the
booth at a convenient height for writing, * * *. A guard rail shall be
placed at each polling place at least two meters from the ballot boxes and from
the booths, and no ballot box or booth shall be placed within two meters of
such rail, and each guard rail shall be provided with an entrance and
an exit, the one separate from the other. The arrangement of the
polling place shall be such that the booths can only be reached by passing
within the guard rail, * * *. Such booths shall be so arranged that there
shall be no access thereto except by the door in the front of said
booth.

“A printed copy of this Act, in English and Spanish, shall be hung and kept
in a conspicuous available position in every polling place on all registration
days and on election day and may be consulted by any voter or person offering to
register.”

2. The provincial treasurer of Tarlac Province testified that he received
from Manila and delivered to the municipal treasurer of Camiling 3,300 blank
ballots. A receipt executed by the municipal treasurer on May 11,1913,
acknowledges receipt of this number. The municipal treasurer testified that he
did not receive this number. Also, that he did not deliver all that he did
receive to the election inspectors of the respective precincts. The following
tabulated statement illustrates the above conditions:

Precinct.	Delivered to municipal treasurer of Camiling	Number received according to testimony of municipal treasurer.	Number delivered by municipal treasurer to election boards.	Number retained by municipal treasurer.
	700	698 (2)	584	114
	650	629 (21)	420	209
	650	646 (4)	350	296
	650	646 (4)	330	316
	650	647 (3)	470	177
Total	3,300	3,266 (34)	2,154	1,112

In explanation of this shortage of 34 blank ballots, the municipal
treasurer testified that he did not actually count the ballots received until
June 3, the day preceding the election, when he found 34 ballots missing; that
the ballots were in five packages, corresponding to the five precincts of
Camiling; and that from the appearance of the wrappers, there was no indication
that any of the ballots had been taken from any of the packages. As opposed to
this testimony, we have the admission of counsel for the contestee that the
provincial treasurer actually sent 3,300 ballots to Camiling. There was no
shortage reported from any other municipality in the province. The municipal
treasurer testified that he kept these ballots in an aparador from the
date he received them until election day. On the morning of the election, June
4, he called a meeting of the inspectors of the various precincts to advise them
of the shortages. The majority of the inspectors were present, but he could not
say if all were there. He did not deliver all the ballots he had received to the
various election boards because, as he stated, the municipal president had
advised the provincial treasurer that there were 2,000 voters in Camiling,
whereas there were only 1,300. So witness decided to deliver only enough ballots
to allow one and one-half ballots to each voter. He still had in his possession
at the time of the trial the remainder of the ballots. Upon being informed by
the municipal treasurer of this shortage, the inspectors of the various
precincts held a meeting, at which it was decided to mark all the ballots before
they were given to the voters, so that if the missing ballots were used by
anyone, they could be detected. The mark decided on was an accent mark over the
letter “O” of “Official Ballot,” printed on the reverse side of each ballot. We
do not hesitate to say that the testimony of the municipal treasurer that there
was a shortage in each of the packages of ballots he received is, in our
opinion, false. The ballots were extracted from the packages while in his
custody. And in view of his false testimony in this respect, there is a strong
presumption that they were taken with his knowledge and connivance. An
inspection of the ballots after the election showed the following results:

Of the ballots found in the two ballot boxes of the first precinct,
all but five bore the accent. Four of these were presented as exhibits for the
contestant, and of them the lower court said: “All of these ballots are found to
be marked, on their reverse side, with an accent over the ‘O’ of ‘Official
Ballot,’ with the exception of four, Exhibits E-l, E-2, E-3, and E-4, which bear
no mark whatever. Three of these ballots are for Gregorio Romulo. These ballots
should be rejected. As all the ballots of this precinct were marked, those lost
while under the control of the municipal treasurer were utilized here.”

The municipal, treasurer delivered to this precinct 584 ballots. Five hundred
and eighty-three were found in the two ballot boxes, leaving an unexplained
shortage of one ballot.

All the ballots used in the second precinct bore the accent mark. Of
the 133 blank ballots delivered to the municipal secretary after the election
from this precinct, only 13 bore the distinguishing mark.

None of the ballots used in the third precinct bore the
distinguishing mark. No explanation is given of this. Whether the inspectors of
this precinct were not present when the municipal treasurer advised the
inspectors that ballots were missing, or whether they were so advised and
declined to agree with the other inspectors to mark the ballots with the accent
mark agreed upon, is not clear.

All of the ballots used in the fourth precinct bore the accent mark.
Of the 123 blank ballots delivered to the municipal secretary after the election
from this precinct, eight had the distinguishing mark. Five of these eight
ballots showed that they had been doubled in the form in which good ballots are
doubled, and then straightened out in order that they might be placed flat in
the envelope.

Of the ballots delivered to the fifth precinct, the lower court
found in this connection as follows: “All the ballots found in the boxes, except
19, bear on their reverse side the marks made by the election inspectors; but
among the blank ballots returned to the municipal secretary, there are some
which are marked the same as those that were used and 87 of them bear a stroke
across the letter ‘0’ of the word ‘Official’ on the inside, and not on the
outside, of the said ballots.”

3. According to section 22 of the Election Law, as amended by section 12 of
Act No. 2045, the following procedure must be observed in the case of voters
incapable of preparing their own ballots: A voter, otherwise qualified who
declares that he cannot write, or that from blindness, or other physical
disability he is unable to prepare his ballot, may make oath to the effect that
he is so disabled, and the nature of his disability and that he desires the
inspectors to assist him in the preparation of such ballot. The board shall
keep a record of all such oaths taken and file the same with the municipal
secretary with all the other records of the board after the election. Two of
the inspectors, each of whom shall belong to a different political party,
shall ascertain the wishes of the voter, and one of them shall prepare the
ballot of the voter according to his wishes, in the presence of the
other inspector, and out of view of any other person.”

The judgment of the lower court contains the following comment as to the
discrepancies in the reports rendered by the inspectors of the five precincts of
Camiling, in compliance with the above provisions of law.

“First precinct: According to the record of the illiterate voters of this
precinct, the inspector Marcelino Fabros assisted only three such persons in the
preparation of their ballots, and Eudoxio Masilongan, twelve. The first named,
nevertheless, identified 13 ballots as his, written in his own handwriting; and
the last named, 32, There is an excess of 30 ballots. It is understood how, for
various reasons, a few names might have been omitted from the list of
illiterates, but not those of thirty voters. Undoubtedly, these inspectors
betrayed the confidence reposed in them, and the ballots written by them merit
no consideration whatever.

“Second precinct: According to the record of
illiterate voters, 59 of these were assisted by the inspectors; but the latter
identified 77 ballots. There is, therefore, an excess of 18 ballots. Were it a
question of only three or four names, we might say that the election inspectors
forgot to record these three or four names in the list of illiterates, owing to
the haste with which they proceeded in all their acts and to the large number of
voters who requested their assistance; but we do not believe that those
inspectors forgot to enter 18 names. If these men had actually voted, we believe
that their names would have appeared in the list or record of illiterates. We
are of opinion that all these ballots should be rejected; and as 42 of them were
cast for Romulo and 35 for Gardiner, 42 votes should be deducted from those
obtained by Gregorio Romulo and 35 from those obtained by Ernesto Gardiner.

“Third precinct: With respect to illiterate voters, Inspector Juan Guillermo
assisted 80 of them. One hundred and nineteen ballots were identified as having
been written by this inspector. Of these 119 ballots, 16 are for Ernesto
Gardiner and the rest for Gregorio Romulo. There is proof that 136 illiterate
voters voted in this precinct, all of them assisted by Juan Guillermo. It is to
be presumed that in the ballot boxes there were 17 more ballots written by this
inspector. It must be taken into account that Juan Guillermo did not identify
the ballots written by himself, but these were identified by his two companions,
Inspectors Zacarias Reyes and Pio Salamanca. Of the 136 illiterates, 54 of them
testified that they indicated to Juan Guillermo that they wished to vote for
Gardiner for governor. Of the 119 ballots identified as written by Juan
Guillermo, only 16 of them were cast for Gardiner. Juan Guillermo defrauded the
will of 38 voters for Gardiner, and these votes should be awarded to this
candidate and deducted from those obtained by Gregorio Romulo. The other 82
illiterates who testified all voted for Gregorio Romulo, which is proved by
their own testimony.

“Fourth precinct: With regard to the illiterate voters, 49 of them were
assisted by the election inspectors, but the latter identified only 41 ballots.
There must be a few more ballots that were written by these inspectors and which
could not be identified by them for some reason or other.

“Fifth precinct; With respect to the illiterates, it is sufficient to say
that, according to the certificate of election, only 73 of them were assisted by
the inspectors, while the chairman of the board identified 98 ballots as having
been written by the inspectors.”

We do not understand why the court failed to find the inspectors of the
second, third, fourth, and fifth precincts guilty of fraud by the same line of
reasoning which was applied to the inspectors of the first precinct. In the
second precinct the court finds that the discrepancy between the records of
the inspectors and their testimony could not be explained as an oversight in the
keeping of records. As the discrepancy is only attributable to a willful
disregard of the above quoted provisions of section 22, for no good purpose,
their conduct is on a par with that of the inspectors of the first precinct. The
court does find, in effect, that the inspectors of the third precinct
grossly defrauded the illiterate voters. That, perhaps, is sufficient, without
expressly stating that they were guilty of fraudulent acts. In the fourth
precinct, however, the inspectors’ records show that 49 illiterates voted,
while they could identify but 41 ballots, a discrepancy of 8. The explanation is
that the inspectors were unable, in eight instances, to recognize their own
handwriting. This explanation is not consistent with the well known accuracy
with which a person can identify his own handwriting on a document containing as
much of it as a ballot at a general election. The better explanation seems to be
that the inspectors deliberately padded the list of illiterates. In the
fifth precinct, where the court found the inspectors guilty of fraud in
other particulars to such an extent that it was found necessary to annul the
returns from that precinct, there can be no question that the shortage of 25
illiterates on the records of the inspectors was due to fraudulent
practices.

In this connection it seems advisable to discuss facts proved at the trial
with reference to the manner dn which illiterates were assisted by Inspector
Guillermo of the third precinct. Guillermo testified that he was asked to write
some of the ballots by the voters themselves; that as to others, he noticed they
were in the booths doing nothing with their ballots (he could do this as there
were no doors to the booths), and presented himself with the offer to write
their ballots for them in order to expedite the voting, but that he was always
accompanied by another inspector. Both the other inspectors, Reyes and
Salamanca, testified that Guillermo attended to the writing of these ballots
himself, and that he instructed them to stay behind the guard rail around the
inspectors’ desk. As will be noted in the above quotation, a considerable number
of illiterate voters from the third precinct were called as witnesses. From the
testimony of those who declared that they voted for Gardiner, the following
tactics of Guillermo were exposed: In practically every one of these cases, the
voter stated that no other inspector was present when Guillermo wrote his ballot
for him. In some cases, when the voter asked for the assistance of two
inspectors, Guillermo advised him that he was enough; and in most cases
Guillermo returned the ballot to the voter folded, with instructions not to open
it or he would lose his vote. These tactics were varied at times. Eutiquio Bunao
testified that he gave Guillermo a provisional ballot bearing the name of
Gardiner, for the purpose of writing his official ballot accordingly, but that
Guillermo thrust it in his pocket and wrote his ballot without reference to it,
at the same time hiding what he waswriting from the witness. Bailon testified
that he requested
Gardiner to call another inspector to which Guillermo
replied by asking why it was necessary to call another inspector when he was
there. Guillermo put the provisional ballot which witness handed to him, bearing
the name of Gardiner, in his pocket, and concealed what he was writing on the
ballot. Fernando testified that he handed Guillermo his provisional ballot,
which bore Gardiner’s name. Guillermo would not accept it and handed it back to
him without reading it, saying it was no good. Guillermo told the witness that
what he had written was all right. Pascual testified that he told Guillermo whom
he wished to vote for, but Guillermo replied that he already knew. Cebrado
testified that when he had told Guillermo his candidates for assemblyman, third
member, vice-president, and two councilmen, Guillermo told him that was
sufficient and refused to write any more names.

The greater number of these witnesses were thoroughly cross-examined, but
their testimony was not shaken in theleast. Their statements as to whom they
voted for appear to have been accepted by the lower court as true, inasmuch as
the returns from this precinct were revised in accordance with their statements.
We see no reason for not also accepting their statements as to the conduct of
Guillermo.

In this connection it may be well to notice the fact that the protestee
presented some sixty illiterates from this precinct who testified that they
voted for Romulo and that they were assisted by two inspectors. This testimony
was intended to rebut that offered by the witnesses for the protestant to the
effect that the latter were assisted by only one inspector. The admission of
this evidence was objected to by the protestant and is raised by him on this
appeal, but owing to the length of this opinion and the minor importance of the
question in this case, we shall not attempt to determine it at this time. A
comparison of the testimony of a considerable number of these witnesses with the
record of illiterates, however, develops at least three discrepancies. Simon Ra~
salon, Domiciano Paz, and Victor Ventura testified that they were assisted by
inspectors Guillermo and Salamanca while the record of alliterates shows that
they were assisted by inspectors Guillermo and Reyes.

It seems from the
testimony of Vicente, Basilio, Berzosa, and Vicente, four illiterate voters
of the second precinct, that they were also assisted by only one inspector
in making out their ballots.

It is thus seen that frauds were perpetrated on the illiterate voters of each
of the five precincts of Oamiling by the inspectors themselves.

4. The testimony of Mariano Morales, a voter of the first precinct, stands
out prominently as a most glaring abuse of authority on the part of sun election
inspector. This man spoiled his first ballot, and asked for and received
another. He had just written the name of his candidate for the Assembly when
inspectors Masilongan and Castro approached. Masilongan entered the booth and
finished writing the ballot for him. In reply to the inspector’s question as to
who his candidate for governor was, Morales replied, “Ernesto Gardiner;”
whereupon the inspector called to a police officer standing in the room,
“Officer, take this man out;” and when the ballot had been completed, the
inspector Castro, who was looking on, said, “Now fold your ballot,” and through
fear witness folded his ballot and deposited it. The ballot in question was
properly identified. The name of witness’ candidate for the Assembly was written
in his own labored handwriting. The rest of the ballot was filled out in the
handwriting of the Inspector Masilongan, and Romulo’s name appeared as the
voter’s candidate for provincial governor. Trinidad, one of Gardiner’s
watchers, testified that Gardiner’s watchers were not allowed within the polling
station during the time the voting was taking place. They were allowed to
witness the count of the ballots, but as there was only one light, they could
not see the writing on the ballots. Garcia testified that while he was making
out his ballot, the chairman Castro stood beside him, watching what he was
writing; and that through fear he voted for Romulo, although he wanted to vote
for Gardiner. The ballot boxes of this precinct were not delivered to the
municipal secretary until the afternoon of the 6th. Although the ballot boxes
were sealed with wax, it bore no signet. According to the inspection of the
court, however, the boxes did not appear to have been opened after they were
sealed.

An inspection of the ballot boxes- of this precinct also showed 19 ballots in
the same handwriting. Of these ballots the lower court said: “Objection was made
by the plaintiff to the ballots Exhibits Z-l to Z-19, as being in the same
handwriting. All of them were cast for Gregorio Romulo for the office of
governor, and a simple inspection is all that is required to disclose that they
were written by one or two persons. These ballots were not written by any
inspector, and inasmuch as, according to the law, no voter may write more than
one ballot, they should be rejected.”

These ballots were not written by any inspector. The municipal treasurer
found only two ballots missing from those destined to this precinct. The
inspectors accounted for all the ballots delivered to them by the municipal
treasurer. How some one other than the inspectors got possession of these
nineteen ballots and voted them is not explained.

In the third precinct, as stated above, none of the ballots were
marked by the inspectors. According to Guillermo, the inspectors finished their
labors at about 7 o’clock on the night of the 6th, but could not immediately
deliver the ballot boxes to the municipal secretary as it was raining. It was
past 11 o’clock when it stopped raining and they were able to proceed to the
secretary’s house. They reached the latter’s house after 12 o’clock. He was
enabled to fix the time of their departure for and arrival at the secretary’s
house because he looked at his watch both times. The secretary refused to
receive the boxes as it was after midnight. He and the secretary of the board,
one Santos, thereupon went to the house of one Gil Clemente and spent the night
there, taking the boxes with them. The next morning they went to the municipal
building, and at 7 o’clock met the other members of the board there. While
awaiting the arrival of the municipal secretary, they noticed that the registry
numbers of the illiterate voters had not been placed on the list of illiterates
who had voted. They also noted that in some cases the votes for some of the
candidates for the municipal council had not been segregated. Also, the cousin
of one Cansino asked witness how many votes the latter had received, and on
looking at the election return he did not find this name. On referring to the
tally sheets, he saw that this name appeared. According to the election return
as finally incorporated in the record, this man received 22 votes. On
discovering these imperfections in their reports, they asked the municipal
president for desk room in the municipal building to make their corrections,
which was refused them, with- the information that they could return to the
polling station to complete their labors. This they did, and at 5 o’clock that
evening they had finished this work and were ready to make another effort to
deliver the boxes to the secretary; but it was raining again. At 8 o’clock it
stopped raining and they then delivered the boxes to the secretary. Clemente’s
house, where witness and the secretary spent the night of the 6th, was very
close to the municipal secretary’s house. Yet, it only took 25 minutes to make
the trip from Clemente’s house to the polling station the morning of the 7th,
while the night before it took an hour to make the trip from the polling station
to the secretary’s house. The direct examination of this witness, if it could be
believed, was a clear, concise, and logical exposition of the facts relating to
the election, the method of conducting the same, all the details as to what took
place. Most of his testimony is included in the answer to one question and
covers some seven typewritten pages of the record. His cross-examination,
however, presents a series of evasions and insincerities, and shows such an
inaptitude and hesitancy in answering the questions propounded to him that
credence could hardly be given to his testimony if it stood alone. Salamanca
testified that he did not see the boxes after the night the secretary refused to
take them. Reyes says nothing about spending the 7th in the polling station
correcting the records of the board. The municipal secretary testified that he
saw all the inspectors at the municipal building on the morning of the 7th and
that they did not deliver the boxes to him as they had some corrections to make.
The boxes were delivered to him that night between 9 and 10 o’clock. According
to Reyes, who also referred to his watch, it was 12 o’clock when they finished
with the returns and started for the secretary’s house on the night of the 6th,
and 12.30 when the secretary refused to receive them. According to the
secretary, it was 12.20 when the inspectors appeared at his house with the
boxes. Reyes repeatedly stated that Guillermo told him and Salamanca to leave
the conduct of the election to him and he would look out for things. From the
testimony of this witness and a letter written by him at the request of counsel
for the appellee, it is quite evident that this witness was hardly competent to
be an inspector at an election, as he wrote with difficulty, and did not
understand Spanish at all well. Gil Clemente, at whose house Guillermo and the
board’s secretary spent the night of the 6th with the ballot boxes, testified
that on the morning of the 7th, just as he got up, these two persons were
sealing the boxes with wax. Later on in the day he found two pieces of wax
underneath his house. Of this matter the lower court says:

“The ballot boxes of this precinct were carried to a private house, that of
one Gil Clemente, at about 12.30 at night on June 6, 1913. The reason why that
was done, was because the municipal secretary refused to receive the said ballot
boxes when they were delivered to him, on the ground that the hour for effecting
such delivery had already passed. Gil Clemente testified that on the following-
day he had seen Juan Guillermo seal the ballot boxes with wax. Juan Guillermo
denied this, and the poll clerk, Victor de los Santos, who accompanied Juan
Guillermo while he had the custody of the ballot boxes, was not called upon to
testify. On the other hand, there is no proof that the contents of the said
boxes were touched. These boxes were properly sealed and the other inspectors of
election have not ventured to testify that the seals were broken. The result of
the recount made by the commissioners is in entire agreement with that found in
the statement of the inspectors.”

Nevertheless, the pro forma denial of Juan Guillermo does not merit
much weight when we consider the frauds practiced by him on the illiterate
voters, his unsatisfactory testimony, and the contradictory evidence contained
in the declarations of Inspectors Reyes and Salamanca and of Clemente. Guillermo
was practically the whole election board and the other two inspectors did not
interfere with his acts. Having perpetrated frauds on illiterate voters, he
would certainly not have hesitated to commit other fraudulent acts if he had the
opportunity; and since the returns were practically prepared by him, the mere
fact that they agree with the recount made by the commissioners is not a
convincing argument that he did not tamper with the ballots and falsify the
returns in other ways. Opportunities to do so were not lacking, and the time at
his disposal, some seventy-two hours, was sufficient for the purpose.

In the fourth precinct, the ballot boxes were opened twice between
the time of their delivery to the municipal secretary by the inspectors and
their delivery to the clerk of the trial court. Asuncion, one of the inspectors
in this precinct, testified that this was done in the municipal building the
first time in the presence of all the inspectors, and the second time in the
absence of Inspector Espiritu. Nevertheless, this inspector’s name appears on
the paper with which the box was sealed. Primero, the remaining inspector,
testified the second day of the trial that his signatures appearing on the paper
with which the box of good ballots was sealed, were not his; but a week later,
when the ballot box was not before him, he testified that those signatures were
his. He further testified on this occasion that the ballot boxes were opened
only once.

As to the fifth precinct, it is sufficient to quote from the opinion
of the lower court: “Three ballots, therefore, have disappeared, for the
commissioners found only 271 good ballots in the ballot box. We are of the
opinion that the ballot boxes of this precinct were tampered with. This opinion
is strengthened by the document (p. 62 of the record) which reads: ‘The board of
election inspectors of the fifth electoral district decided to make a second
canvass of the ballots previously counted on June 4, 1912, in view of an
irregularity committed by its chairman, Ramon Barvo, in reading the ballots not
in conformity with the names that appear thereon. And, for such purposes as may
be proper, we hereunto affix our signatures, in Camiling, this 6th day of June,
1912. (Sgd.) Simon Hilario, Inspector. (Sgd.) Nicasio Agliam, Inspector.’
Further support of this opinion lies in the fact that the ballot boxes of this
precinct were not sealed.”

5. It seems that on the eve and day of the election most of the candidates
for governor and municipal president were distributing provisional ballots with
their names written thereon. The plan was for their constituents to take these
ballots into the booths and copy therefrom to the official ballots in order that
no mistake might be made. Romulo’s provisional ballots bore his photograph on
the reverse side, while Gardiner’s ballots were devoid of any such
embellishment; so the provisional ballots of the two rival candidates were
easily distinguishable.

In the first precinct, the witness Morales testified that he met
Governor Romulo on the stairway leading up to the polling station as he went in
to vote and as he came out. Estrade testified that he voted about 8 o’clock in
the morning. At this time, the governor was on the stairway exchanging his
sample ballots for those carried by Gardiner’s constituents, and telling them to
vote for him and that if they did not to look out, as he would be governor until
October. The governor talked to each one individually and spoke in a low voice
so that he could not be heard unless one was near him. He saw the governor
exchange about twenty ballots in this manner, and then went to inform Gardiner.
The latter complained to Captain Reyes of the Constabulary, who was in the
municipality that morning, and Captain Reyes thereupon came to the polling
station of the first precinct, and made the people about the polling station
clear the 30-meter space around the station. The voters did not accept the
ballots handed to them by Romulo willingly but through fear of him. Salvador,
who voted about 7 o’clock in the morning, testified that he saw Governor Romulo
on the stairway; that he was depriving Gardiner’s adherents of his provisional
ballots and substituting his (Romulo’s) own. He took some of these Gardiner
ballots from the pockets of the voters and thrust his own in in place of them.
He saw the governor exchange about 40 ballots in this manner. He watched this
proceeding about twenty minutes, until one Cabrera informed the people that they
were violating the law by remaining there. On hearing this, witness left, but
the governor went on up the stairway where there were more voters. Some of the
voters appeared willing to accept Romulo’s ballots, while other accepted them
only because they were afraid of the governor. Juan Garcia voted in the first
precinct at a little after 8 o’clock. He testified that the governor was on the
stairway of the building exchanging his own ballots for Gardiner’s. He (witness)
had one of Gardiner’s ballots and intended to vote for him when the governor
made him exchange it for one of his own, saying that if he did not vote for him
he had better look out, as he would be governor until October. Through fear of
this threat he voted for Romulo. Chairman Castro of the election board was
watching him while he wrote out his ballot. Pedro Gampon, an illiterate,
testified that Governor Romulo exchanged a Gardiner ballot which he had intended
to use when he voted, for one of his own, saying that he had better look out if
he did not vote for him. The governor was on the stairway at this time, which
was about 7 o’clock. The cross-examination of these witnesses, although
thorough, did not develop any material discrepancies or inconsistencies in their
testimony. Their declarations are confirmed to a certain extent by the testimony
of Captain Reyes, who testified that Gardiner informed him that Romulo was
electioneering within the thirty-meter limit in the first precinct, and that on
going to the polling station he found the crowd gathered around the stairway,
among whom was the governor, who was talking to the people.

Of the charges of threats in this precinct the lower court said: “The most
important point in this matter, in connection with this precinct, is the
allegation that the governor, Gregorio Romulo, was changing ballots, threatening
with imprisonment such voters as would not change their ballots, and saying to
them besides that he would be governor until October. Apparently all this
was nothing else than electioneering within the 30-meter limit. It is most
likely that Ernesto Gardiner was told of these things and complained of such
threats to Captain Reyes of the Constabulary. Now then, Captain Reyes testified
that only Gardiner told him that Romulo was electioneering within the 30-meter
limit, and that in view of this complaint by Mr. Gardiner, he, the witness,
cleared the voters out of the space comprised within the 30 meters. Moreover,
the ballots concerned were provisional ones, not official ballots, and there is
no evidence whatever that those electors in voting did not do so freely in favor
of the candidates they desired to see elected.”

We are at a loss to understand this appreciation of the above testimony.
Either it is true or it is not true. If it its true, Governor Romulo was
certainly guilty of something more serious than a mere nonobservance of the
30-meter space around the polling station. Depriving an elector of a provisional
ballot given to him by another candidate and forcing upon him one of his own,
accompanied by veiled threats of the consequences of not voting for him,
certainly exceeds the limits of legitimate campaigning which Governor Romulo was
entitled to carry on. The testimony of the above witnesses is not rebutted by
any satisfactory evidence in the record. No valid reason has been suggested nor
can we conceive of any for rejecting this testimony. Our conclusion is that the
lower court failed to give it its proper weight, and that the charges of threats
and intimidation in this precinct are established by the great preponderance of
the evidence.

The polling station in the second precinct was in the house of Juan
Vigilia, a sergeant of the municipal police who was apparently charged with
inspecting the various polling precincts of the municipality. He was a Romulo
adherent. Captain Reyes found him near the entrance to the stairway of the
polling station in the second precinct, talking to the voters, and admonished
him that even though the house belonged to him it did not look well for a police
officer to be violating the Election Law in that manner. Witness Del Rosario
testified that he was around the polling station all day. He did not vote until
about 4 or 5 o’clock in the afternoon. At between 8 and 9 o’clock in the morning
he saw the president of the municipal board of health, Juan Bauson, within the
30-meter limit around the polling station. From his testimony it appears Bauson
was following the same tactics as were attributed to the governor himself in the
first precinct. At between 9 and 11 o’clock witness saw the governor there and
he also was exchanging ballots and using threats. The governor remained about
half an hour. He saw Captain Reyes reprimand Vigilia for violating the 30 meter
space around the polling station. In the afternoon he could see Vigilia in the
room where the booths were located, walking up and down the room, but did not
see him talking to anyone. In the morning Vigilia was using threatening language
at the foot of the stairway. Domingo Acosta corroborates Del Rosario in all
important particulars, and one Clemente, a partisan and nephew of the candidate
for municipal president of the same name, testified that he saw Vigilia in the
polling station on at least two occasions talking to the inspectors and
electors. The appellant in this case, Ernesto Gardiner, testified that as he and
Papa were passing the polling station of the second precinct in a calesa on
their way to the third precinct at about 4 o’clock in the afternoon, he saw
Vigilia standing near the window of the polling station, talking to an elector.
They stopped the calesa and Papa called out to Vigilia asking why he was
electioneering in the polling station, to which Vigilia replied that they (Papa
and Gardiner) had already lost. Vigilia denied this, saying that the only time
he was in the polling station was when he voted, sometime in the afternoon. He
spent the entire day inspecting the different precincts, visiting each one three
times. He resigned from the police force on June 10. Juan Bauson, the president
of the municipal board of health, testified that he was not in the second
precinct on election day at all. Captain Reyes testified that he saw Bauson in
the morning, whether in the first or second precinct he could not remember.
Bauson testified that he saw Captain Reyes in the first precinct at noon, when
he voted there. But Captain Reyes left the municipality at 10.30 in the morning.
Bauson denied making any threats whatever. He first testified that he was only
in the third and fourth precincts, but later on in his testimony said he was
also in the first precinct when he voted there. He was in the fourth precinct
about two hours in the afternoon, in the third precinct between 4 and 5 o’clock,
and in the first precinct at 12 o’clock. The court summed up all this testimony
as follows:

“It is also alleged that one Bauson, the president of the board of health of
Camiling, changed in this precinct the provisional ballots the voters had for
other ballots in favor of Mr. Romulo, and that he said, besides, that they’d
better look out, for however it turned out, Mr. Romulo would be governor until
October. It is also alleged that Romulo threatened the voters by saying to them
that if they did not vote for him they’d better look out, and that he afterwards
treated them to gin in a bar. Threats must be serious and formal and infuse in
the mind sufficient fear to restrain personal liberty of action. The acts
performed by Bauson and Governor Romulo, as well as those of Sergeant Vigilia of
the municipal police, do not constitute threats; they are simply electioneering
acts.”

The evidence of misconduct in this precinct on the part of Romulo and his
partisans is stronger, if anything, than the evidence relating to their actions
in the first precinct. The polling station was even placed in the dwelling
hou&e of one of his supporters. It will be noted that the lower court was of
the opinion that the statements of Romulo and Bauson that the voters had better
look out as Romulo would be governor until October did not constitute a threat.
If we correctly interpret this expression, it was in the way of a warning of
impending evil in case the persons to whom it was addressed did not do a
specified thing. We agree with the court that a threat must be serious. At the
same time we cannot believe that the threats were intended as mere pleasantry.
Whether they were spoken merely with the intention of intimidating the voters
and were mere bluster, or whether Romulo and his friends believed themselves to
be in a position and intended to punish the voters in case these instructions
were disregarded, is immaterial. If they were sufficient to inspire fear, which
it appears they did, they were threats. It must also be remembered that these
threats emanating, as they did, from officers who were then in power, must have
carried more weight than had they been uttered by a faction not yet in
power.

Pio Salamanca, an inspector of the third precinct, testified that
one Ricardo Reyes, a stepson of Diego Reyes (the latter a candidate for
municipal president), armed with a bolo, was in the polling station about one
hour in the afternoon, threatening Gardiner’s adherents and exchanging the
provisional ballots which they carried for Romulo’s. Jose Andres testified that
while he was in a booth writing his ballot, Reyes approached him and told him he
had better call an inspector to write his ballot for him and told him to vote
for Romulo or something would happen to him. Candido Calimlim and Anastasio
Santos were called as witnesses, and it was stipulated that they would testify
as had Jose Andres. Zubiate and Bravo, two municipal policemen on guard in the
third precinct, testified that the only time Reyes entered the polling station
was when he voted, at about 12 o’clock.

Of this testimony, the court said :

“Intimidation is also charged here. It is alleged that one Ricardo Reyes,
carrying a bolo at his waist, threatened the voters in the polling place to make
them vote for Gregorio Romulo. It is impossible to conceive the performance of
such an act. All the election officers were at the time within the polling place
and batches of 24 voters were continually and alternately entering and leaving,
for the purpose of voting. Besides, there were in the immediate vicinity of the
polling place municipal policemen, Constabulary officers, and some 90 voters who
were awaiting their turn. Under these circumstances, such acts could not be
attempted without being immediately repressed.”

In the fourth precinct Vicente Ines testified that he had one of
Gardiner’s ballots and that when he came within 20 meters of the polling
station, Juan Bauson (reference to whom has already been made while discussing
the second precinct) saw the ballot and told him that that ballot was bad, and
gave him another ballot, saying that that was his and that i£ he did not vote
that way he would be sent to the provincial jail at Tarlac. Inspector Primero
wrote his ballot for him, and witness told him he wanted to vote for Gardiner,
but Primero said, “Leave that to me. I will take care.” Bauson testified that he
was in the fourth precinct but that he did not make any threats there. He said
that he talked with one of Gardiner’s partisans trying to convince him that he
ought to vote for Romulo, but as this man stated that his candidate had given
him a ballot to vote he left him. He talked to another Gardiner man, but as he
saw he was a bitter partisan of Gardiner, he did not care to exchange ballots
and left him. He was within the 30-meter limit at this time because the crowd
was there. He carried about twenty of Romulo’s provisional ballots that day.
Captain Reyes testified that he found the people disregarding the 30-meter limit
around this precinct also. This was about 9 o’clock in the morning. Of this
precinct the court said: “There is no proof that the elections in this precinct
were not held in a perfectly regular manner.”

Andres Andres, of the fifth precinct, testified that he saw the
governor within the 30-meter limit, as well as one Francisco Reyes, an adopted
son of Romulo. Reyes was there from the opening of the polls until after 9
o’clock, exchanging ballots and threatening those who seemed unwilling to take
the ballots he offered them. Eulogio Madriaga arrived at the polling station
about 9 o’clock and saw Reyes erase Gardiner’s name from one of his provisional
ballots carried by an elector whom witness knew. Pablo Agustin testified that
Reyes exchanged some forty ballots, telling the voters that Gardiner was a
Spaniard and that if they voted for him the friars would get back into power.
Reyes admitted that he had changed the name on the ballot referred to by
Madriaga but said that he first secured the permission of the voter. He
testified that he changed the names on several other ballots with the permission
of the voters. He saw Gardiner’s adherents distributing provisional ballots and
this caused him to become enthusiastic in espousing Romulo’s cause, and after
they had left, he approached several of these voters and found they were really
Romulo’s men. The court says nothing about this testimony, probably because the
entire returns from this precinct were thrown out for the reasons stated in the
quotation from its opinion appearing above.

Such is the resume of the more important evidence from the record before us.
Our conclusions from a review of this evidence are as follows:

1. That in all of the precincts of Camiling the booths were on the second
floor instead of on the lower floor as required by law.

2. That in all these five precincts, due to the absence of doors to the
booths, the fact that the desks on which the ballots were marked faced the sides
of the booths, and the fact that there were no guard rails in front of the
booths, the ballots were exposed to the view of persons passing in front of the
booths in the very act of being marked by the voter, thus practically destroying
the secrecy with which the law requires that the elector shall be protected
while marking his ballot.

3. That ballots were surreptitiously abstracted from the packages of printed
blanks while in the custody of the municipal treasurer and never recovered; that
the accent mark placed over the letter “0” in the phrase “Official Ballot” on
the reverse side of the ballots was not an adequate mark whereby to distinguish
the remaining blank forms from those illegally taken from the supply; that this
official mark was not observed at all in the third precinct and that in none of
the precincts were all the blank forms received by the respective election
boards thus marked; that not even ordinary precautions were taken by the various
election boards to prevent the stolen ballots from being voted.

4. That the election board in each of the five precincts (except the fourth)
perpetrated unconscionable frauds in marking the ballots of the illiterate
voters; and that in the fourth precinct there was a discrepancy between the list
of illiterates as shown by the election records and the number of such ballots
identified as having been written by the members of the board, for which they
failed to render any satisfactory explanation. Of the truth of these findings
there can be no serious question.

5. The most difficult point to determine is whether Romulo and his adherents
were guilty of a species of electioneering on election day amounting to
intimidation of the voters. A consideration of the evidence bearing on this
phase of the case and the judge’s findings relative thereto, convince us that
the lower court failed to give it due consideration. The evidence as to the
forcible exchange of provisional ballots, threats, and intimidation in the first
and second preqincts is particularly strong. A considerable number of witnesses
testified as to the intimidation of voters in these precincts. As we read this
testimony it is convincing and devoid of serious discrepancies or
inconsistencies. Nothing contained therein taxes the credibility unless it be
that so prominent an official as the governor of the province should resort to
or countenance such unworthy and reprehensible practices in order to succeed
himself in office. Governor Romulo did not testify. All of the others who were
accused of resorting to these tactics in his behalf, however, did so testify.
From the testimony of the latter we find them all self-acknowledged adherents of
Romulo and in some instances his relatives. We find Juan Vigilia, the local
police officer charged with the maintenance of order around the polling
stations, himself disregarding the law in this respect, and talking to voters
whom he also allowed to crowd around the entrance to the polling station, which,
incidentally, was his own private residence. We find Bauson testifying that he
saw Captain Reyes in the first precinct at 12 o’clock while Captain Reyes had
left the municipality at half past ten o’clock; and by the testimony of Captain
Reyes it is established that Bauson was seen by him in the first or second
precinct on the morning of the election. The evidence as to intimidation and
threats in the other precincts is not so strong. In the third precinct
particularly we are inclined to agree with the lower court that such evidence is
far fetched and unreliable. In the fourth precinct the evidence of intimidation
is limited to the testimony of one witness. Bauson, however, admits that he
talked to two voters in this precinct and if the evidence of his conduct in the
first precinct is to be believed, there is good reason for presuming that he
assumed the same arrogant bearing in the fourth precinct, as testified by the
witness Ines. In the fifth precinct Francisco Reyes, a relative of Romulo,
appears from the testimony of several witnesses to have threatened and
intimidated voters.

After a careful consideration of the evidence before us, we have come to the
conclusion that Romulo, Bauson, Vigilia, and Reyes were guilty of forcing
Romulo’s provisional ballots upon unwilling constituents of Gardiner, by
threatening and intimidating them in a manner calculated to make them believe
that, on the principle of the maxim “Of two evils choose the lesser,” it would
be advisable to vote for Romulo. The first three named spent the greater part of
the day visiting the various precincts. Two of them were prominent municipal
officers, and the other occupied the highest office in the province. There can
be no doubt that such a combination was capable of intimidating the more
ignorant and poorer class of electors by threatening reprisals if they did not
vote for Romulo. We are led irresistibly to the conclusion that Romulo’s
handsome plurality, or better said, majority, in each of the five precincts was
due to a great extent to the intolerant and high-handed methods above set forth,
in the execution of which it appears he actively participated.

But withal, we would not be heard to say that there were not honest votes
cast for Romulo in Camiling. There were undoubtedly many voters who honestly
believed that Romulo was the candidate most worthy of the office of provincial
governor, who cast their votes for him from no other reason than that he was
their choice for the office, nor that there were no electors superior to the
threats of the Romulo faction and who marked their ballots for Gardiner, despite
the fact that they were compelled to mark them exposed to the view of persons
passing by the booths, and whose ballots were correctly counted by the election
inspectors despite their illegal favoritism for Romulo. This leads us to a
consideration of the principles upon which we have determined to avoid the
returns from Camiling, notwithstanding the ballots of such voters.

The purity of elections is one of the most important and fundamental
requisites of popular government. To banish the spectre of revenge from the
minds of the timid or defenseless, to render precarious and uncertain the
bartering of votes, and lastly, to secure a fair and honest count of the ballots
cast, is the aim of the law. To accomplish these ends, Act No. 1582 was enacted.
This law requires that only qualified electors shall be admitted to the polls;
that they shall vote in absolute secrecy, and that the returns shall be justly
compiled and announced. In its essential details, this law is a counterpart of
the ballot laws almost universally adopted within comparatively recent times in
the United States, and is generically called by textwriters the Australian
ballot law. The interpretation and application of the essential features of this
law have received the attention of the high courts of every jurisdiction where
it has been enacted, and a noticeable effort has been made to divide its
provisions into those mandatory and those directory, the former being supposed
to have the effort of vitiating the returns when not complied with, while the
effects of a disregard of the latter are held to be contingent upon whether they
affect the merits of the proceeding. The provisions of the law as to the
conduct of the elections which were disregarded in the five precincts
of Camiling which first attract attention are that the polling station shall be
upon the ground floor, that the booths shall have four sides enclosed, the one
in front to open and shut as a door, and that they shall be provided with a
guard rail. (Sec. 9, quoted supra.) The law does not specify the
consequences of a nonobservance of any one of these requirements, and it is
therefore our duty, upon well established rules of interpretation and
construction of statutes, to consider whether a failure to observe them violates
the spirit and intent of the law.

In Bowers vs. Smith (111 Mo., 45; 16 L. R. A., 754), the court said:
“If the law itself declares a specified irregularity to be fatal, the courts
will follow that command irrespective of their views of the importance of the
requirement. (Led-better vs. Hall, 62 Mo., 422.) In the absence of such
declaration, the judiciary endeavor, as best they may, to discern whether the
deviation from the prescribed forms of law had, or had not, so vital an
influence on the proceedings as probably prevented a free and full expression of
the popular will. If it had, the irregularity is held to vitiate the entire
return; otherwise, it is considered immaterial.” In Kenworthy vs. Mast (141
Cal., 268), it was said: “It is practically impossible to lay down any general
rule covering all cases, but we think the true test to be applied to departures
from the requirements of the laws relating to the conducting of elections on the
proper day and at the proper place, be those requirements called mandatory or
directory, is as to whether or not the particular departure is of such a nature
as to make it impossible or extremely difficult to determine, under the
circumstances of the case, whether fraud has been committed or anything done
which would affect the result.”

In Atkinson vs. Lorbeer (111 Cal., 419), it was said: “Election
contests arising out of irregularities of election officers frequently present
to courts the alternative of either setting aside in the case in hand the honest
and clear expression of the will of the majority of the voters, or of so
construing the election laws as to open the door to future frauds which it is
the purpose of those laws to prevent. Of course, neither the voters nor those
voted for have any control over election officers; and to set aside the vote of
a precinct, when there was clearly no fraud or any mistake affecting the
result, for mere irregularities occasioned by the ignorance or carelessness
of election boards would in many cases be a patent injustice. Moreover, a
construction requiring an exceedingly strict compliance with all statutory
provisions might tempt to irregularities contrived for the very purpose of
vitiating the vote at a certain polling place, and, as was said in Whipley
vs. McKune (12 Cal., 361), ‘might lead to more fraud than it would
prevent. On the other hand, statutory provisions which are clearly mandatory
must be substantially complied with; and even directory provisions cannot be so
grossly departed from as to make it impossible or extremely difficult to
determine whether fraud had been committed or anything done which would affect
the result.”

A statement of the rule in Jones vs. State (153 Ind., 440), by the
supreme court of Indiana has often been quoted with approval: “All provisions of
the election law are mandatory if enforcement is sought before election in a
direct proceeding for that purpose; but after election, all should be held
directory only, in support of the result, unless of a character to effect an
obstruction to the free and intelligent casting of the vote, or to the
ascertainment of the result, or unless the provisions affect an essential
element of the election, or unless it is expressly declared by the statute that
the particular act is essential to the validity of an election, or that its
omission shall render it void.”

These general rules have been frequently applied. In Choisser vs. York (211
111., 56), the returns from one precinct were not signed by the judges and
clerks of election, as required by law. Proclamation of the results was made in
only two out of fifteen precincts. In another precinct the judges of election
did not appear, and three persons constituted themselves judges and proceeded to
hold the election. There was an entire absence of fraud or intimidation in the
conduct of the election, and it was held that these being mere irregularities
which did not prevent or subvert a free and honest expression of the popular
will, should not be allowed to vitiate the returns.

Initials of poll clerks indorsed upon the lower right hand corner on the back
of the ballots instead of on the lower left hand corner as prescribed by law
were held not to render the ballots invalid, the court saying that the error was
an innocent and honest mistake of the officers. (Parvin vs. Wimberg,
130 Ind., 561; 15 L. R. A., 775; 30 Am. St. Rep., 254.)

In Montgomery vs. Henry (144 Ala., 629; 1 L. R. A., N.’S., 656), the
ballots were not numbered to correspond with the name of the person voting the
same on the poll list, as required by law, but it was held to be a mere
irregularity not sufficient to invalidate the election, as there was no
suspicion of fraud on the part of the inspectors in failing to do so.

Failure of the election judges to take oath when there was a fair vote and an
honest count was held, in Heyfron vs. Mahony (9 Mont, 497; 18 Am. St.
Rep., 757), not to invalidate the returns.

Minor irregularities of an election board, voters, and by-standers in a
polling station, unaccompanied by fraud or conduct affecting the integrity of
the ballot were held not to operate to quash the election in Bingham
vs. Broadwell (73 Neb., 605).

“The general rule is that a failure on the part of the election officers to
perform their duties according to the statute, will not be allowed to
disfranchise the voters, unless such failure has prevented a fair election or in
some way affected the result. McCrary on Elections, section 724.” (Craig
vs. Spitzer, 140 Ky., 465.)

Other cases may be found of irregularities waived, always in the absence
of fraud, in Lindstrom vs. Board of Canvassers (94 Mich., 467; 19
L. R. A., 171) ; Skelton vs. Ulen (217 Mo., 383); Gass vs.
State (34 Ind., 425); Hayes vs. Kirk wood (136 Cal., 396); Bailey
vs. Hurst (113 KyM 699); Carwile vs. Jones (38 Mont., 590);
Hankey vs. Bowman (82 Minn., 328); Coleman vs. Board of Education (131
Ga., 643); Clark vs. Hardison (90 S. W., Tex. Civ. App., 342); Norman
vs. State (99 N. E., 812).

In State vs. Shanks ([N. D.], 125 N. W., 122), it was held that an
election in a different place from that designated in the election notice was
not sufficient to avoid the election when it was not shown that any elector was
deprived of his vote.

But that irregularities, even when not accompanied by fraud or intentional
wrong, may be so serious as to invalidate the returns, is also well
established.

In State vs. Ely ([N. D.], 137 N. W., 834), a polling station had
been duly established by the county commissioners, but the election was held at
another place a considerable distance therefrom, without special reasons. The
court ordered that the returns should not be canvassed for the reason that the
change was unauthorized and that it was therefore the duty of the election
inspectors to show that the change was made in good faith, without fraud, and
with no intent to injure the cause of respondents, and that in fact no one was
thereby deprived of his vote. (Citing Whitcomb vs. Chase, 83 Neb., 360;
17 Ann. Cases, 1088.)

The omission of registration has been held to be so grave an irregularity as
to vitiate the returns, even in the absence of fraud. (Ledbetter vs.
Hall, 62 Mo., 422.)

In Melvin’s Case (68 Pa., 333), it was said to be settled law that a whole
election district may be stricken out on showing an entire disregard of
conformity to law in holding it, either by design or accident.

In the Michigan case of Wheeler vs. Coleman (decided July 9, 1913; 142 N. W.,
570), the returns were announced and the box then locked and, in a manner,
sealed, though not in accordance with law. During the canvass the unused ballots
were passed around to keep tally on and not returned to the township clerk. No
certified statement of the result was prepared the night the canvass was made,
and the ballot box was left unguarded in the town hall during the night. The
next morning the defeated candidate appeared and orally asked for a recount,
although by law such a request was required to be m writing, accompanied by a
deposit. The inspectors acceded to the request, and proceeded to recount the
ballots, the candidate in question and his brother assisting and advising. Their
count gave this candidate a small plurality. Although there was no showing of
fraud, it was held that these irregularities were so prominent as to necessitate
a return to the figures originally given out by the board.

In Perry vs. Hackney (11 N. D., 148), through a misinterpretation of
the law relating to the construction of the booths, they were built in exactly
the same manner as were the booths in the municipality of Camiling, except that
the writing1 shelf was placed against the back of the booth, so that the voter’s
body and the sides of the booth prevented anyone passing along the line of
booths from seeing the ballot while it was being marked. There was also a row of
school desks used as a guard rail in front of the booths, although they were not
10 feet from the booths as required by law. There was not even an allegation of
any fraud or intimidation in the conduct of the election. The court said:

“Not only do the findings show that the omissions had no effect upon the
state of the vote, but they also show that the electors in Cheyenne precinct had
a secret ballot within the meaning and spirit of the law. It is true, the
statutory mode of guarding its secrecy was not strictly obeyed; that is, the
voter was not screened from observation when marking his ballot in the manner
contemplated by the statute, and the guard rails were not 10 feet from the
ballot boxes and booths. But these are mere means of securing a secret ballot,
which is the end aimed at, and when that is accomplished the spirit and purpose
of the law has been accomplished. By reference to the findings before set out,
it will be seen that, while the body of the voter was in full view when in the
booth, his ballot, when laid across the shelf in the booth for marking, was
concealed by his body and the sides of the booth. He was able to mark his ballot
screened from observation, and it does not appear that any ballots were marked
otherwise than in secret. To hold that this election was not by secret ballot
would be, in our opinion, to subordinate substance to form, and to hold that the
means, and not the end, is of permanent importance.”

It will be noted that the court emphasized the fact that the booths so far
complied with the law that the voter was not prevented from marking his ballot
in secret It can well be doubted if the returns would have been upheld, even
though it appeared that the election was conducted without fraud, had the
inspectors provided no guard rail and had placed the writing shelf facing the
side of the booth instead of the rear, so that a person passing along the row of
booths could easily see how the ballot was being marked.

In Choisser vs. York (211 111., 56; cited supra), the
judges of election in one precinct did not appear and three persons constituted
themselves judges and proceeded to hold the election. There were only three
booths, an insufficient number, and for that reason some of the ballots were
marked in a small adjoining room. The authorized register of voters was not used
but it was not shown that any illegal votes were cast in consequence of the
absence of the register. The court upheld the results with the exception of the
votes which were marked in the small adjoining room on the ground that there had
been no fraud in the conduct of the election.

As to these votes, however, the court said: “This provision of the statute
(relating to the construction of booths) is an important one, and should not be
disregarded. It has been held that a failure of election officers to erect
booths in compliance with law was an irregularity which would not vitiate the
election. (Moyer vs. Van de Vanter, 12 Wash., 377; 50 Am. St. Reps.,
900.) We are of the opinion, however, that this statute is so far mandatory that
it must be substantially complied with. To permit a room adjoining the room in
which the election is held to be used as a booth, would open wide the door for
fraud by permitting unauthorized persons to have access to the voter and it
would substantially destroy the seclusion of a citizen while preparing his
ballot—at least such might be the result.”

In Banks vs. Sergent (104 Ky., 843), about 75 voters in one precinct
had their ballots marked on the table by some officers of election without any
disability being shown and without swearing the voter. The proof showed that the
voter would be furnished with a card or slip of paper, when he entered the
polling station, containing the names of the parties he desired to vote for, and
that on presenting this card one of the election officers would read it aloud
while another would mark the ballot. Booths were placed near a window with the
window lights out and near large cracks in the house, it being a log house. When
a voter went into a booth persons outside could see how he was marking the
ballot. Of this precinct the court said:

“It was in no sense a secret ballot. The secrecy of the ballot is a
fundamental idea of all elections, and this is required by the constitution as
well as by statute. This central idea being disregarded in this precinct, and a
practical viva voce election held, as the proof shows, we are of
opinion that the returns therefrom should be disregarded.”

Contrast the above cases, in which there was no charge of fraud or
intimidation on the part of anyone, with the following cases, where the
inspectors of election were guilty of fraudulent practices.

In State
vs. Malo (42 Kan., 54), the election board willfully refused to issue a
statement, immediately after the polls closed of the number of votes polled, as
required by law; they refused to permit any of the opposing party to be present
in the polling station during the reception of the votes, as required by law;
and indulged in many other fraudulent practices. The court said: “In a word,
every provision of the statutes of this State made for the purpose of preventing
fraudulent and corrupt practices in the conduct and result of elections was
wantonly disregarded by the election boards in Cimarron and Foote townships, and
by the clerk of the county, and by all the officers whose duty it was to see
that a free and fair election was held and an honest count had. These repeated
omissions of duty and willful violations of positive requirements were not the
result of ignorance or carelessness, but were produced by a settled
determination to carry the election in favor of Cimarron by any means and at all
hazards.”

In Rhodes vs. Driver (69 Ark., 501), persons were permitted to vote
who had not paid their poll taxes; votes of two persons known to one of the
judges to be dead were received; twelve were recorded as voting who swore they
did not vote; four were recorded as voting who were not in the township; sixteen
recorded as voting could not be found in the township; and all of the above
votes were for the contestees. The officers of election were strong partisans of
the contestees. There was evidence that the original poll lists were destroyed
and others substituted. These frauds on the part of the election board were held
to vitiate the election.

In Attorney-General vs. McQuade (94 Mich., 439), which was before
the court on a demurrer to the complaint, it was alleged that the chairman of
the election board deposited 13 ballots of unregistered persons in the ballot
box; about seventy-five exposed their ballots after being marked; and the
chairman refused to swear an inspector for the purpose of marking ballots of
illiterate voters as required by law. The court said: “If an inspector or other
person be permitted to enter the booths with the voters, the danger is far
greater than under the old system, where there was some opportunity to see and
detect fraud. Under this practice, venal voting could readily be accomplished.
The law is designed to secure absolute secrecy to the elector, and thus prevent
all opportunity for corrupt practices. The law does not permit parties to profit
by such frauds, though they may not have participated in the fraud.”

In Vigil vs. Garcia (36 Colo., 430), one of the judges frequently left the
polling place, and an unsworn substitute took his place, the judge in question
becoming so intoxicated that he was incapacitated and was compelled to sleep
during a considerable portion of the time the votes were being counted; he
refused to assist an illiterate and told the other judges to assist him and be
sure and vote him against two prominent candidates; alleged illiterates were
assisted without affidavits of their illiteracy; the ballots were counted in a
large part by unauthorized persons; and many people voting were seen in the
precinct only a few days before and not after the election. These incidents
caused the court to void the returns.

In Freeman vs. Lazarus (61 Ark., 247), where the returns were thrown
out, it was established that the judges of election electioneered with voters in
the booths, and urged them to allow such judges to prepare their ballots; that a
large number of ballots were prepared by one judge instead of two as required by
the statute; that they were prepared directly contrary to the express wish of
the voters and were returned to them folded. The court reviewed the law as to
the construction of the booths and non-interference with the elector while he
was prepaying his ballot, saying that all these were stringent provisions
intended to guard the voter against interference or influence while preparing
his ballot and that it was the intention of the Legislature by these means to
free the voter from all extraneous influence, and to make his ballot an
expression of his own will.

In Orr vs. Kevil (100 S. W., 314, Ky. Ct. App.) 18 ballots were
marked by voters who had been bribed, a fact of which the election inspectors
were cognizant; 26 ballots were found in the box which did not bear the clerk’s
name upon their backs, and upon three of these being unfolded and found to be
Republican votes, objection was made to opening any more. Upon trial these 26
ballots could not be found. The law provided that where it appeared from an
inspection of the whole record there was such fraud and bribery in the conduct
of the election that no one could be said to have been fairly elected, the
returns should be thrown out. This provision of law was held applicable and the
returns from that precinct ordered thrown out, the court saying: “An election
officer who so far forgets the sanctity of his oath as to participate in one
kind of fraud at an election, can readily be believed to be willing to commit
any other which the necessity of his party requires, and the opportunity of his
position permits. It requires little knowledge of the methods of election frauds
in modern times to appreciate how easily a close election could be turned by a
shifty and resourceful clerk omittinghis name from the backs of the ballots of
ignorant and unwary voters, if this would suffice for the accomplishment of the
evil design.”

In Russell vs. State (11 Kan., 236), the court said in part: “Now
comes the contestant and says that the record (of the election board) is a lie,
and proves that 127 of the names so recorded as the names of legal voters are
fictitious, and that 127 spurious ballots were cast into the ballot box. In
other words, he proves absolutely that nearly one-fourth of this record is
false. And this falsehood cannot have been the result of ignorance or mistake.
It is not possible that this could have happened without the knowledge, consent,
and connivance of both the clerks, and some, at least, if not all, of the
judges. Surely, there was criminal culpability if not actual, intentional
wrong-doing on the part of all the officers of that election board. But, says
the contestee, the whole record is not shown to be false. Reject the 127 votes
proved to have been spurious, and accept the balance not thus proven. In other
words, accept all of the record not proved untrue. If the falsehood resulted
from mere mistake, there would be great force in this demand. So also, if the
falsehood resulted from the fraud or wrong-doing of others than the board. But
where» the recording officers are proved to have knowingly made a largely false
and fraudulent record, how can we place reliance on any of the record?
Falsus in uno, falsus in omnibus. * * *

“It doubtless happens that some legal voters are by this decision deprived of
the benefit of their votes. Perhaps there were honest votes cast, enough to have
given the majority to Fredonia. A large majority of the citizens of Fredonia are
honest men, were ignorant of the fraud which was being perpetrated, and are
doubtless as much grieved as we at this terrible trespass on the purity of the
ballot box. May this example preach its lesson, not alone to them, but equally
to every citizen of the State. They who in Rome watched and kept the sacred fire
were vestal virgins. Equally pure should they be who watch and guard that which
is far more to us than mystic altar fires.”

The contrast between the two lines of cases is most marked. Where it has been
established that a fair and honest election was held, none but the gravest
irregularities will avoid the election: such as might be said to raise a
presumption of fraud. But where the election board has committed irregularities
fraudulently, they need not be serious or numerous. The position and
duties of an election board is one where much must be left to the honesty and
integrity of its members. Many of its acts must be accepted as true even though
false, for the reason that no adequate proof can be secured of their falsity.
The law has, however, outlined its duties with some care; and fraudulent
practices kept within bounds can not, as a rule, assume large proportions. Nor
can fraud be practiced in many directions without asserting itself at some point
or other. So that from the very difficulty of following all the movements of the
board, a grave suspicion immediately arises as to its honesty of purpose when
once a fraud chargeable to it has been discovered. The thought immediately
suggests itself, if fraud was committed here, it is probable that it was also
committed there, where it can not be proved except by the confession of the
inspectors themselves. The general rule is that a witness proved a willful
falsifier on a material point is thoroughly discredited. The same rule should
apply to the record made by an election board. It is prima facie
evidence of the results of the election, backed by the familiar presumption that
public officials have done their duty. But once it is proved fraudulent in
an important particular, the party claiming under it should be put to his
proofs. Such is the rule, more strongly stated, however, by McCrary on
Elections, sec. 541 et seq:

“The safe rule, probably, is that where an election board are found to have
willfully and deliberately committed a fraud, even though it affect a number of
votes too small to change the result, it is sufficient to destroy all confidence
in their official acts, and to put the party claiming anything under the
election conducted by them to the proof of his votes by evidence other than the
return.”

And he declares the same rule applicable when the integrity of the returns is
destroyed by misconduct of the officials, consisting in “a reckless disregard of
the law, or in ignorance of its requirements” though no corrupt purpose be
affirmatively shown. (Id., sec. 540.) (And see Londoner vs. People, 15
Colo., 557.)

Such are, we believe, the principles which govern the case at bar. The
questions we are called upon to decide are: Were there mere irregularities in
the conduct of the election in the five several precincts of Camiling? If so,
were these irregularities of so serious a character as to be ascribed to
inexcusable ignorance or a reckless disregard of the law? Were there fraudulent
practices in the conduct of the election? Were threats and intimidation employed
of a character serious enough to intimidate and coerce the electors?

Were we confronted with the bare proposition that the polling stations were
located on the second floor and that the 30-meter space around them was not kept
clear, it might be that we should not have taken the drastic step of avoiding
the returns from this municipality. The law directs that these things be done,
but it does not say that the fact that they were not done shall have the effect
of vitiating the returns, and unless the nonobservance of the law in this
respect was made a means of fraud or coercion they should be considered as
harmless irregularities.

But the failure to provide booths according to law is of a more serious
character. The central idea of the Australian ballot law, as so often expressed
in the cases, is to shroud the marking of the ballots in absolute secrecy. All
the efforts to secure a free and untrammeled expression of the elector’s will
lead up to and depart from that point. If the plan fails in this particular, it
is worse than useless to have him register his vote on a slip of paper and
require the election board to go through the arduous task of compiling and
ascertaining the result from numbers of such slips. The voting booths in the
five precincts of Camiling in nosense of the word insured a secret ballot. The
most superficial study of the Election Law should demonstrate that the central
idea is to prevent any other person than the voter from knowing how he marks his
ballot And the most ordinary intellect could not fail to observe that open
booths, unprovided with a guard rail, and with the writing shelves facing the
sides of the booths would leave but a mere shadow of the absolute and
impenetrable secrecy which a strict compliance with the law affords the voter.
No explanation of this gross disregard of the law has been made. It has not even
been alleged that it was due to ignorance or a misunderstanding of the law.
Indeed, it would be difficult to believe that the importance of affording the
elector a secret ballot should be so far misunderstood as not only to fail to
provide booths with doors and guard rails, but also to place the writing
desks so that they faced the sides of the booths. The combination of the
three circumstances suggests strongly that it was due to design rather than to
mistake or ignorance.

But it is unnecessary to base our decision in this case on the faulty
conditions obtaining in the polling stations. The inspectors of the first,
second, third, and fifth precincts have been conclusively shown to have returned
a fraudulent list of illiterates. The same list prepared by the inspectors of
the fourth precinct is also inaccurate, and the certainty of their dishonesty is
only lessened by the reduction of the discrepancy. For this discrepancy the
election inspectors of this precinct offer no explanation, and none has been
suggested which, to our view, is reasonable. Ballots unaccountably disappeared
after the blanks had arrived at the municipality of Camiling, and no adequate
system of marking the remaining supply was adopted, and even this was not
uniformly adopted. Charges of threats made within the 30-meter limit, and in
some instances, within the very building where the polling station was located,
appear to be well founded. Besides these matters, applicable to all the
precincts, various incidents—straws, as it were, indicating the direction of the
current—have been proved to have occurred in particular precincts, which it is
not necessary again to recall. A threat as the voter entered the polling
station, and the espionage of a zealous partisan while the ballot was being
marked doubtless caused many a voter of peaceful tendencies to succumb to such
strong-arm methods, and to finish the disagreeable business as soon as possible.
How many such votes were thus obtained it is, of course, impossible to tell.
Such methods are not confined to particular ballots, easily distinguishable
during the canvass of the votes. They are diffusive: to locate their triumphs is
impossible. Nevertheless, votes so obtained are as fraudulent as particular
ballots containing identification marks, which are conclusively presumed to be
fraudulent. The latter, when discovered, are simply not counted. They have no
other effect on the results. It is just as desirable that votes obtained through
coercive methods should not be counted, but being incapable of detection it has
been necessary to adopt a more heroic treatment. The courts have therefore laid
down the rule that when fraudulent votes are so mixed up with honest votes that
it cannot be determined how many are honest and how many are fraudulent, the
returns shall be destroyed. (State vs. Fulton, 42 Kan., 164.)

“It is not necessary to show that a majority were actually prevented from
voting, or voted against their wishes by reason of the practice (intimidation).
When the wrong is flagrant and its influence diffusive, it is sufficient that it
renders the result doubtful.” (Jones vs. Glidewell, 53 Ark., 161; 7 L.
R. A., 831.)

In Martin vs. McGarr (27 Okla., 653), it was said: “While a
contestant in an election may always object to the counting and consideration of
fraudulent or illegal votes, yet the reception of the same will in no instance
result in the avoidance of the election except where the entire poll is so
tainted that the good votes cannot be separated from the bad, and it is
impossible to ascertain for whom the majority of the valid ballots were cast.
The general rule obtaining throughout all the States of the Union is that an
election is not to be held invalid except as a last resort, the correct doctrine
being announced by Judge Brewster, in the case of Batturs vs. McGary (1
Brewster, 162), as follows: The courts have the power to reject the entire poll,
but only in the extremest case—as where it is impossible to ascertain the true
vote. Impossibility is the test.'”

In Hardy vs. Beaver City (125 Pac, 679), it was said:

“Where an election takes place which is held or conducted in violation of
some express constitutional or statutory provision, or where through some act of
commission or omission prohibited by law on the part of the voters or some of
them, the result of an election is affected, or if it be shown that fraud,
intimidation or other illegal methods were practiced, then an election cannot
stand.”

These are the grounds upon which we rejected the returns from the five
precincts of the municipality of Camiling: a fatal flaw in the conduct of the
election, accompanied by frauds on the part of the election officials, and
intimidation of voters.

In concluding this extremely disagreeable task, we desire to state that we
are aware of the seriousness of disfranchising the innocent electors of a whole
precinct for acts done by others. We are not unmindful of the force of
the argument that if courts set aside the returns from a precinct for light and
trifling causes, it will encourage the unscrupulous to seek profit by the honest
mistakes of election officers committed in the conscientious performance of
their duties. On the other hand we appreciate the importance to the people of
enforcing those statutory provisions which the legislature have provided to
insure a free and undefiled expression of the popular will at the polls, to the
extent that fraud may not flourish under the guise of honesty. The right of
suffrage is of comparatively recent origin in this country. If at this early
stage of its existence, the courts are to countenance such bold disregard of the
law as was exhibited in the municipality of Camiling at the last general
election, representative government will soon become a farce; a mere catchword
or an empty illusion. Regardless of the political unrest engendered by such
deplorable litigation as the present and its enormous expense to the
contestants, we are of the opinion that a firm stand against fraudulent
elections must now be taken, once for all. If no encouragement is offered to
vicious practices, they will, at least, never grow larger.

Torres, Johnson, and Moreland, JJ., concur.

---

^[1] OCTOBER 31,
1913.

The trial court found that the protestee, Romulo, received a plurality of 138
votes. We have reached the conclusion that the entire election held in the
municipality of Camiling must be annulled on account of frauds and gross
irregularities. This gives the protestant a plurality of 143 votes. Whatever
might be our rulings on the validity of the other questioned votes, the result
w6uld not be changed. We therefore accept the decision of the trial court upon
these points without announcing any doctrine in reference thereto. The result is
that an order must be issued directing the provincial board of canvassers to
correct their returns by giving the protestant a plurality of 143 votes.

In view of the importance of the questions presented and argued, this court
will, at the earliest practicable date, set forth in full its reasons for
annulling the election in Camiling.

No costs will be allowed in either instance.

Torres, Johnson, Moreland, and Trent, JJ., concur.

Arellano, C. J., Mapa and Carson, JJ., dissent.