FRANCISCO P. FELIX, ET AL., PETITIONERS, VS. THE COMMISSION ON ELECTIONS, AND THE MUNICIPAL BOARD OF CANVASSERS OF CAINTA, RIZAL, RESPONDENTS.

This is a petition for a writ of certiorari, with preliminary
injunction, to annul an order of the Commission on Elections dated November 28, 1967 and to prohibit
and restrain the enforcement of said order, pending decision in the present
case.  Upon the filing of said petition,
or, on December 11, 1967, we required the original respondents, Commission on
Elections – hereinafter referred to as COMELEC – and the Municipal Board of
Canvassers of Cainta, Rizal
– herein­after referred to as the Board of Canvassers – to file their answer,
and ordered the petitioners to include Gregorio Cruz and Julian Francisco as
parties respondent in the case at bar. 
We, likewise, directed that a temporary restraining order be issued
restraining said respondents from effectuating or en­forcing the order
complained of and that the petition for a writ of preliminary injunction be set for hearing on December 15, 1967. 
On that date, both parties appeared before the Court and were granted
leave to submit their respective memoranda on said petition, which they
filed.  Subsequently, both parties filed
their respective memoranda on the merits of the case, and the same was deemed
submitted for decision.

Petitioners Francisco P. Felix and Felix de la Paz were
candidates for Mayor and Vice-Mayor, respectively, of the Municipality
of Cainta,
Province of Rizal, at the general
elections held on November 14, 1967.
 Their co-petitioners – namely, Servando de Guzman, Jose S. Tolentino,
Apolinar Corrales, Nazario
N. Fernandez, Marcial B. Vicencio,
Angel Alcoriza, Restituto
de Guzman and Jose P. Javier – were then candidates for councilors of the same
municipality.  The main opponent of Felix
de la Paz for vice-mayor was Gregorio Cruz, and one of the candidates for
councilor in the latter’s ticket was Julian Francisco.  After canvassing the votes for all the
precincts in the Municipality of Cainta, on November 16, 1967, the Board of
Canvassers thereof proclaimed Francisco P. Felix and Felix de la Paz as the
elected candidates for Mayor and Vice-Mayor, respectively, of said
municipality, and the other petitioners herein as the elected councilors
thereof.

Eleven (11) days later, or on November 27, 1967, Gregorio Cruz
and Julian Francisco, Paulino Javier, Catalino Cruz, Faustino Estanislao,
Francisco Sta. Ana, Jose Garcia, Romulo Gonzales and
Mateo Fernandez, filed, with the Court of First Instance of Rizal,
election case No. 10406 thereof, against the petitioners herein, except
Francisco P. Felix, protesting the proclamation of de la Paz as
Vice-mayor-elect and of the other protestees therein
as councilors-elect of Cainta, upon the ground that
the canvass and proclamation made by the board of canvassers “do not
reflect the actual results of the elections held at Cainta,
Rizal x x x since the statement of election returns on the basis of
which the said canvass and proclamation were made do not show the actual and
accurate number of votes received by the protestants and the protestees” in ten (10) precincts specified in the
protest.

That same day, at 7:40 p.m., Gregorio Cruz and Julian Francisco
had filed with the Comelec a petition, against the
board of canvassers, as well as against Felix de la Paz, Jose Javier and the
municipal treasurer of Cainta, Rizal,
for the annulment of the canvass and the proclamation made by said board of
canvassers, on November 16, 1967, upon the ground that said canvass and
proclamation were based:  1) “on
admittedly mistaken election entry”; and 2) on “falsified and/or
altered election returns.”

The next day, “after hearing Senator Jovito
Salonga, who appeared” for Gregorio Cruz and
Julian Francisco – according to the minutes of the session of the Comelec held on November 28, 1967 – the Comelec
issued the order com­plained of, setting aside said canvass and proclamation by
the board of canvassers and ordering the same to “reconvene im­mediately
and make a new canvass” of the votes cast in Cainta
“in the November 14, 1967 elections using as basis of said recanvass the authentic copies of the election
returns”.

Alleging that they had not been served copy of the petition filed
with the Comelec or notified of the hearing before
the same, until they received copy of said minutes of the Comelec,
on December 7, 1967, petitioners herein commenced the present action on
December 8, 1967, to annul said order of November 28, 1967, upon the ground
that the Comelec “had acted without or in excess
of its jurisdiction” in issuing said order, because:  1) the petitioners in the Comelec
had already filed in court a protest contesting the election of petitioners
herein, except Francisco P.  Felix; 2)
petitioners herein had been denied due process; and 3) the allegations in the peti­tion
filed with the Comelec did not warrant the action
taken by said body.  In their answer,
filed with this Court, respondents herein alleged that the order complained of
had been issued in accordance with law and that the aforementioned election protest
been filed ex abudante cautela.

The writ herein prayed for should be granted.  To begin with, respondents’ allegation to the
effect that said election pro­test had been filed ex–abudante
cautela is not borne out by the record.  The protest does not allege, either directly
or indirect that it was provisional or precautionary in nature.  On the con­trary, its allegations suggest
that it is intended to be pushed through earnestly.  Indeed, apart from averring that the con­tested
canvass and proclamation do not reflect the actual results of the elections
held in Cainta, particularly in the protested
precincts, the protestants therein alleged that “there is a pressing need
for this Honorable Court now to immediately order the boxes”
pertaining to said precincts “to be produced before it x x x to prevent their being lost,
destroyed or tampered with” and that “the protestants are willing and
able to file a bond” in such amount as the court “may fix to answer
for the payment of all expenses and Costs incidental to the protest”.

We have already held that where a candidate files an election
protest assailing the proclamation of his opponent and prays that he (the
former) be declared elected, the question whether the election returns reflect
the true result of the elections should be elucidated and decided in said
election protest, not in another pro­ceeding, either administrative or judicial
in character.^[1]

It is urged, however, that the canvass and proclamation made by
the board of canvassers on November
16, 1967 were null and void for the reasons stated in the petition
filed with the Comelec and that,
accordingly, the protest was without force or effect what­soever.  Said reasons were that the canvass and
proclamation had been based “on admittedly mistaken election entry”
and on “falsi­fied and/or altered election returns.”

The first ground was predicated upon the fact that the chair­man,
a member of the board of inspectors and the poll clerk in precinct No. 5 of Cainta had signed a statement to the effect that they had
“erroneously, unintentionally and due to tiredness and physical or mental
fatigue,” committed a grave error in good faith, by cre­diting to Felix de
la Paz 149 votes which belonged to Gregorio F. Cruz, and crediting to the
latter 115 votes that had been obtained by de la Paz.  It should be noted, however, that one of the
election inspectors for precinct No. 5 had not signed said statement, so
that a petition for correction of the corresponding election return would not
necessarily prosper, it being settled that such correction cannot be
authorized, under section 154 of the Revised Election Code, if one of the
members of the board of inspectors objects or does not agree thereto, the
proceedings under said section being non-contentious in character.^[2]
In other words, on the face of the petition in the Comelec
it was not possible for the same, therefore, to determine, without notice to
petitioners herein, whether said correction could be effected or not.  What is more, the failure of one inspector to
sign said statement suggested that he, probably, was averse to the
aforementioned correction.

Respondents herein, likewise, lay emphasis on a photostatic copy of a “certificate of votes,”
signed by all the members of the board of inspectors of said precinct No. 5,
showing that Cruz had garnered 149 votes and de la Paz, 115 votes.  The issue before the Comelec
hinged, however, not on the number of votes actually obtained by Cruz and de la
Paz, but whether a court of justice could order the correction of the return
for Precinct No. 5, pursuant to said section 154.  Indeed, if said return were not corrected, it
would be useless to order a new canvass.

Upon the other hand, the very answer herein of the Comelec shows that the same requires boards of canvassers
to suspend the canvass only if it should clearly appear:  1) that “another copy or other authentic
copies of the statement of the election return from an election precinct
submitted to the board give to a candidate a different number of votes and the
difference affects the result of the election;”^[3]
or 2) that “there is a difference between the votes of the same candidate
written in words and those written in figures in the same election
return;”^[4]
or 3) “that the entry of votes in the election return is on its face
clearly falsified;”^[5]
or 4) “that it is not legible.” The case of precinct No. 5 does not
come under any of these situations.

Then again, it has not been satisfactorily shown that the
attention of the board of canvassers had been called to the alleged mis­take in
the election return for precinct No. 5 or to the aforementioned statement of
some of the members of its board of inspectors. 
Indeed, petitioners herein doubt, not without foundation, that said
statement was made on November 16,
1967, the date appearing thereon, because the corresponding
petition for correction was not filed with the Court of First Instance until December 1, 1967, and no explanation
has been offered for the delay.

In the petition filed with the Comelec
it is, further, alleged that the canvass and proclamation made by the Board of
Canvassers had been based on “falsified and/or altered election
returns,” but this averment is predicated merely upon “a tabulation
of the election result as per election returns submitted x x x to the Liberal Party
President.” Certainly this allegation is insufficient to characterize
the returns, on which the canvass and proclamation were based, as falsified or
altered, much less to authorize the ex parte
annulment of said canvass and proclamation.

Significantly, the election protest filed in court by the
petitioners in the Comelec did not question
the authenticity of said returns or allege that the same had been
“falsified” or “altered.” It merely alleged that, if the ballot boxes
for the protested pre­cincts were “opened, the ballots examined and the
votes cast x x x recounted,
“it would appear that the protestants, not the protestees had had the requisite plurality of votes.  This goes to show, although indirectly, that
the election returns upon which the canvass and proclamation had been based
were authentic, even if the same do not allegedly reflect the true result of
the elections.

It should also, be noted that the alleged irregularities seen
forth both in the petition filed with the Comelec and
in the aforementioned election protest do not affect the office of Mayor
of Cainta, and yet the canvass and proclamation
for this office was annulled.

In view of the foregoing, and considering that the
petitioner herein have, on the date set by law therefor,
taken their respecting oaths of office and assumed the functions thereof, and
that the petitioners in the Comelec had filed the
election protest above referred to, we find that the questioned order of the Comelec, dated November 8, 1967, should be, as it is
hereby, annulled.  The restraining order
issued by this Court is, accordingly, made permanent, with costs against
respondents Gregorio Cruz and Julian Francisco.

IT IS SO ORDERED.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro, Angeles, and Fernando, JJ., concur.

^[1] Gumbal vs. Court of First Instance, L-16409 &
L-16416, Nov. 29, 1960; The Municipal Board of Canvassers vs. Benitez,
L-16319, June 30, 1960.

^[2]
Benitez vs. Paredes & Dizon,
52 Phil., 1; Board of Inspectors vs. Sison, 55
Phil., 914; Gumbal vs. Court of First
Instance, L-16409, Nov. 29, 1960.

^[3] Parlade vs. Quicho,
L-16259, December 29, 1959;
Samson vs. Estenzo, L-16286, January 30, 1960; Borongan
vs. Benitez, L-16319, June 30,
1960.

^[4]  M.A. Santos vs. Judge A.
Santos, L-16375, December 18, 1959.

^[5]  Salcedo
vs. Commission on Elections, L-17672, November 1, 1960, December 11, 1961.