EMILIO C. SANTOS, PETITIONER, VS. COMMISSION ON ELECTIONS, ET AL., RESPONDENTS.

This case concerns the proclamation of the winning candidate for
Mayor of Hagonoy by the municipal board of canvassers, originally
constituted by the Mayor of said town and nine members, after canvass
of the votes cast for municipal offices in the election of November,
1959.

The facts appear from the resolution of the Commission on Elections, promulgated on December 14, 1959:

“During the canvassing on November 19, 1959, when
the board reached the election return of Precinct No. 7, some members
of the Board of Canvassers observed and insisted that the entries in
the column for the office of mayor show the following:

FOR THE OFFICE OF MAYOR

and, in view of the said insistence of some members,
the municipal board of canvassers suspended the canvass of the votes
cast in Precinct No. 7 and proceeded with the canvass of the other
election returns until they finished the canvass of all the election
returns of the 91 precincts of Hagonoy, Bulacan at 3:40 P.M. on
November 21, 1959, when they adjourned without any decision on the
status of the election return of Precinct No. 7 in view of the
telegraphic instruction of this Commission issued on November 19, 1959
to the effect that the board shall continue the canvass without
counting the votes cast in Precinct No. 7 for Emilio Perez and Emilio
Santos, with a further instruction that if the votes in said precinct
will materially affect the result of the election for mayor, the
municipal board of canvassers shall withhold proclamation of
mayor-elect and shall give opportunity to any interested party to seek
such remedy in court he may deem proper. On November 23, 1959,
Candidate Emilio Perez filed a petition in the Court of First Instance
of Bulacan for the recounting of the votes cast in Precinct No. 7 to
determine the true result of the count of votes cast in said precinct
for the office of mayor. During the hearing of this case on November
27, 1959 where all the four copies of the election returns were
produced and marked as exhibits (Copy for the Municipal Treasurer—Exh.
D; Copy for the Provincial Treasurer—Exh. E; Copy for the Ballot
Box-Exh. F; and Copy for the Commission on Elections-Exh. G), the
court, after examining all four copies, observed that Emilio Perez is
credited with 30 votes and Emilio Santos is credited with 109 votes in
both the copies of the election returns for the Commission on Elections
(Exh. G) and the Provincial Treasurer (Exh. E), and that in the Copy
for the Municipal Treasurer (Exh. D), there are two “Emilios” and the
surname following the name of “Emilio” on the second space for mayor is
quite clear and could be read as “Santos” who appears credited with 109
votes, so that the Court made the observation that the “Emilio”
appearing on the first space must necessarily refer to “Emilio Perez”,
opposite which is written 30 votes, hence, there is no discrepancy. As
a consequence of this observation by the Court that there is no
discrepancy because the election return in question could be read
“Emilio Perez” and “Emilio Santos”, the petitioner in said case (Case
No. 2080, C.P.I. Bulacan) withdrew his petition on December 1, 1959,
which withdrawal was granted by the Court in its order of the same date.

On
December 1, 1959, respondent members of the board, Saturnina Flores,
Andres T. Cruz, Ricardo Garcia, Antonio Soriano and Salud R. Joaquin,
requested the Commission for the issuance of the original copy of the
election return for Precinct No. 7, copy for the Commission on
Elections, to be used as basis by the municipal board of canvassers of
Hagonoy, Bulacan, in the canvass of votes casts in said precinct, and,
acting on said request, the Commission in its resolution of December 2,
1959, authorized the issuance of photostatic copy of the election
return for Precinct No. 7, copy for the Commission on Elections, for
the use of the municipal board of canvassers of Hagonoy, Bulacan, in
connection with the canvass of the votes cast for municipal offices. On
the same date of December 2, 1959, Special Attorney Aurora O. Bautista,
who was authorized by this Commission to supervise the municipal
canvass by the municipal board of canvassers of Hagonoy, Bulacan,
issued notices to the members of said municipal board of canvassers to
meet at 2:00 o’clock in the afternoon on December 3, 1959 for the
purpose of terminating the canvass and making the corresponding
proclamation of the municipal officials-elect. However, the Chairman of
the board called for a meeting of the board at 8:00 o’clock in the
morning of December 3, 1959 and at this precise hour of the meeting as
called for by the Chairman wherein Atty. Bautista was present, the
Chairman produced a typewritten copy of a certificate of canvass and
proclamation instructing the members of the board to sign said
proclamation papers, to which procedure Atty. Bautista objected on the
ground that the election return for Precinct No. 7 was no yet canvassed
and that no checking and addition of votes in the tally sheet had been
undertaken. A motion was made by one of the members of the board of
canvassers for a division of the board on the question of whether or
not to continue the proclamation, but member Atty. Rafael Suntay moved
for adjournment which motion was objected to by a majority of the
members. At this juncture, taking advantage of the presence of all the
members of the board of canvassers, Atty. Bautista announced to them
that1 the board shall convene then and there instead of at 2:00 P.M.,
and after such announcement by her, five members of the board—the first
five petitioners herein—walked out. This took place at about 9:00 A.M.
After the walk-out of said five members of the board, Atty. Bautista
suspended the five members who walked out and appointed the substitutes
of suspended members Herminio Flores, Leon Reyes, Rafael Suntay and
Feliciano Torres. After the appointment and assumption of office of the
substitutes, the new municipal board of canvassers composed of nine
members proceeded and finished the canvass by including therein the
votes cast for mayor in Precinct No. 7 and thereafter proclaimed the
winning candidates for municipal offices of Hagonoy, Bulacan, including
Candidate Emilio Perez as mayor-elect.

The issue presented in
this case is as to which of the two proclamations is legal and valid.
We will first take up the first proclamation. When the original board
of canvassers, composed of the first five petitioners and the first
five respondents met at 8:00 o’clock in the morning of December 3,
1959, the chairman, Petitioner Trillana, announced that since the board
“have completed the canvassing of all precincts, tallied and computed
the votes received by all candidates, and by virtue of the order of the
court in my hand, my duty today is to proclaim all winning candidates
by virtue of the Election Return” (Exh. Q-Petitioners). Special
Attorney Bautista objected to the proclamation as the board had not
canvassed the election return for Precinct No. 7 and had not added the
votes as recorded in the tally sheets, and at the same time she
presented a photostatic copy of the election return of Precinct No. 7,
copy for the Commission on Elections. After prolonged discussion, the
final action of the chairman is to state that she had already presented
the proclamation for the signatures of the members, and thereafter,
member Suntay moved for adjournment and the first board was adjourned
(Exh. G-Petitioners). The first proclamation gave Emilio Santos 6,936
votes after counting in his favor both the 30 and 109 votes appearing
in the first and second spaces, respectively, in the election return
for Precinct No. 7 as against 6,911 votes for Emilio Perez or a
plurality of 25 votes over Perez. The fact of adjournment, however, is
disputed by the respondent who ever that the first five petitioners
staged a walk-out.” (Annex P, Petition)

In view of the subsequent proclamation of Emilio Perez, his rival
Emilio Santos and the five signers of the original proclamation
recoursed to the Commission on Elections, which, after hearing and
analyzing the facts and the law, annulled the first proclamation in
favor of Santos, signed by the five petitioning members of the
municipal board of canvassers, and upheld the proclamation of Emilio
Perez made by the reconstituted board of canvassers on the afternoon of
December 3, 1959. Whereupon, Santos resorted to this Court in
certiorari and prohibition, asking that the resolution of the
Commission on Elections and the proclamation of Perez be declared null
and void. Upon petition of Santos, this Court issued a writ of
preliminary injunction. After the respondents had answered the
petition, the case was heard on January 4, 1960 and submitted for
decision.

We agree with the respondent Commission on Elections that the first
proclamation of petitioner Emilio Santos, made by the original board of
canvassers, is null and void and of no force or effect. That
proclamation, made in a meeting of the board of canvassers over the
objections of the commission’s representative, was unauthorized, since
“the Electoral Commission, in the exercise of its supervisory powers,
had expressly instructed the board of canvassers, by telegram of
November 23, 1959, not only—

“to hold action on precinct seven until the party affected can bring case to court,”

but also—

“to hold proclamation until further orders of commission unquote stop.”

The Commission had convened the board of canvassers for the
afternoon of December 3, and not on the morning of that day. The
insistence on meeting in the morning and to proclaim Santos as the
winner, in disregard of the supervisory authority of the Commission,
clearly evidences a plan to railroad his proclamation.

Worse still, in the morning session, no canvass of the votes of
Precinct No. 7 had been made, and the proclamation was signed by only
five of the ten members of the board of canvassers, which is not a
majority thereof (Petition, Annex E). As correctly stated in the
resolution complained of—

“It is clear from the evidence presented by the
petitioners themselves that the board as a body composed of the ten
original members has not canvassed the disputed election return for
Precinct No. 7. In the proceedings of the board during its meeting from
November 19 to 21, 1959 when the election return of Precinct No. 7,
copy for the municipal treasurer, was fully debated on, the records
show that on November 19 when the election return of Precinct No. 7,
was opened, while the chairman and member Atty. Torres insisted on
reading the votes appearing in the election return, no decision was
reached by the board because of the long distance telephone instruction
of this commission given on the same day, which was confirmed by
telegram on the same day, enjoining the board to withhold the counting
of the votes cast in Precinct No. 7 for either Emilio Perez or Emilio
Santos while continuing with the canvass of all the other election
returns (Exh. A-Petitioners). Again before adjourning at 4:30 P.M. on
November 21, 1959, when they finished all the other election returns,
the chairman and member Torres again continued insisting on counting
the election return of Precinct No. 7 under the objection of the
representatives of the Commission, Special Attorney Aurora 0. Bautista
and Atty. Primo Jumangit, who were there to enforce the order of the
Commission contained in its telegram of November 19, 1959. Accordingly,
no decision was made by the board when the chairman adjourned the
meeting (Exh. A-Petitioner).

It is clear from the foregoing
facts that up to the signing of the proclamation on December 3, 1959 by
the five petitioners herein, there had never been any canvas made by
the board of the election return for Precinct No. 7 as the board never
decided up to the time of the proclamation how the votes cast in
Precinct No. 7 should be counted. Consequently, the inclusion of the
two figures appearing in the election return namely, the 30 in the
first space and the 109 in the second space for candidate Emilio Santos
so as to make him win and be proclaimed, is without authority of the
board of canvassers and therefore a nullity. Moreover, the first
proclamation was signed by five members which is not a majority of the
10 members composing the board of canvasser. While the petitioners
maintain that there were only 9 members in the meeting of December 3,
1959, the respondents on the other hand maintain that all the 10
members were present in the meeting and this fact is supported by the
report of our Special Attorney Aurora 0. Bautista who was present in
the meeting.” (Annex F. pp. 5-6)

It is regrettable that in its order dismissing the petition of Perez
for a recount of ballots (Petition, Annex C), the Court of First
Instance failed to express its findings that the return of Precinct No.
7 should be interpreted or read as containing the names of both
candidates, Perez and Santos. Such an order would have obviated the
present proceedings, and cut short all disputes.

Upon the other hand, this Court is of the opinion that it must
declare likewise null and void the second proclamation made by the
reconstituted board of canvassers, composed of five members of the
original board and the five substitutes appointed by the Commission by
virtue of its powers under Section 3 of the Revised Election Law. The
reason is that their canvass was not made on the basis of the original
returns for Precinct No. 7 received by the Municipal Treasurer, as
prescribed by law, but upon the photostatic copy of the duplicate
received by the Commission on Elections. It is to be observed that the
five substitutes had not seen the original return, which had been
locked inside an unused ballot box; nor does it appear that any effort
had been made to procure said original return, either by compelling
surrender of the keys to the box or resorting to other adequate means
to open the container. It would be a dangerous precedent, in our
opinion, to authorize the board of canvassers to use any copy of the
return other than the one indicated by law, without first establishing
that the latter is not available.

It is a corollary of the preceding observations that the proper
course of action now is to proceed to a new canvass and proclamation,
that must be carried out by the newly elected municipal council,
pursuant to the provisions of Section 167.

In view of the foregoing, the Electoral Commission’s resolution of December 14, 1959 is hereby modified as follows:

(1) The two proclamations of December 3, 1959 are hereby declared null and void;

(2) The Municipal Board of Canvassers of Hagonoy, Bulacan, composed
of the present members of the municipal council, is hereby directed to
proceed without delay to the canvass of the original return in Precinct
No. 7 of Hagonoy, and in view of its result and of those precincts
already canvassed, to proclaim the candidate for mayor who received a
plurality of the votes cast for that office in the elections of
November 10, 1959;

(3) If doubts should arise as to the name and surname of any
candidate that is written in said return for Precinct No. 7, the Board
of Canvassers shall determine the correct name written therein on the
basis of the other available copies of the return, and of the opinion
of the court in election case No. 2080 of the Court of First Instance
of Bulacan.

(4) If the Board of Canvassers shall be of the opinion that the
return for Precinct No. 7 of Hagonoy contains the name of the same
candidate written twice, then, in view of the discrepancy between the
same and the copies in the possession of the Electoral Commission and
of the provincial treasurer, the Board of Canvassers shall suspend the
proclamation in order to give the party concerned ample opportunity to
petition for a recount of the ballots laid down in Section 168 of the
Revised Election Code, and they shall abide by the judicial resolution
referred to in said section.

The preliminary injunction heretofore issued is dissolved. So ordered. Costs against petitioner Emilio Santos.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, Barrera and Gutierrez David, JJ., concur.