PAULINO TUMAKAY, ET AL., PROTESTANTS AND APPELLEES, VS. LUIS C. ORBISO, ET AL., PROTESTEES. LUIS C. ORBISO, PROTESTEE AND APPELLANT.

In the general elections held on November 13, 1951, Luis C. Orbiso and
Paulino Tumakay were registered candidates for the office of vice mayor of the
municipality of Medellin, province of Cebu. The board of municipal canvassers
declared Orbiso elected with 875 votes as against his opponent Tumakay with 769
votes. In due time, Tumakay filed an election protest against Orbiso before the
Court of First Instance of Cebu. This time the court found Tumakay as the one
duly elected with 751 votes over Orbiso who obtained 694 votes. The protestee
has now taken this appeal on the plea that the only questions he will raise are
purely of law.

While this case was pending appeal in this Court, appellee filed a motion to
dismiss on the main ground that under the provisions of section 178 of Republic
Act No. 180, known as Revised Election Code, no appeal can be taken from a
decision of the lower court in protests involving the position of vice mayor
and, hence,—he contends—this Court cannot now entertain the present appeal.
Action on this motion was however deferred until after the briefs had been filed
in order that it may be taken up in the decision on the merits. We now declare
that said motion has no merit under the doctrine laid down in Marquez
vs. Prodigalidad, G.R. No. L-2098 and Calano vs. Cruz, G.R.
No. L-6404, it appearing that the questions to be determined are purely of
law.

On the side of the political faction of appellant Orbiso in the general
elections held on November 13, 1951 there was a candidate for councilor by tha
name of Patricio Tumayao. The lower court found that in the five precincts of
the municipality where he was a candidate, Tumayao was voted by many with his
surname accompanied by different Christian names, nicknames and other
appellations which, in the opinion of the court, clearly indicate an intention
on the part of the voters to identify their ballots. And so the court found them
to be marked and declared them invalid. These ballots number around 186.

Appellant now poses this question: “In those cases where Tumayao, who was a
candidate, is voted, accompanied by names other than his, is the whole ballot or
only the votes in his favor nullified?” It is appellant’s theory that only the
vote in favor of said candidate should be nullified considering the provisions
of paragraph 9 of section 149 of the Revised Election Code. But the lower court
found otherwise and this is now assigned as error.

The law invoked by appellant provides:

“9. The use of nicknames and appellations of affection and friend-ship, if
accompanied by the name or surname of the candidate, does not annul such vote,
except when they were used as a means to identify their respective
voters.”

A perusal of the above provisions would at first glance indicate that the use
of a nickname or appellation in the name or surname of a candidate when made as
a means to identify the voter has the effect of annulling only the vote cast for
said candidate and not the whole ballot because of the phrase “does not annul
such vote” employed therein, and that this inference seems to be bolstered up by
the other paragraphs of the same article which expressly refer to the ballot
when speaking of the nullifying effect of the irregularity committed by the
voter. But a more careful scrutiny of the provisions of paragraph 9 as compared
with the rest gives us the reason why in said paragraph the word “vote” is used
instead of “ballot”, to wit, that in said paragraph the identifying mark is
written on the very name of the candidate whereas in the other cases the mark or
irregularity is committed on the ballot itself. Moreover, the provisions of
section 149, which contain merely the general rules for the appreciation of the
ballots for the guidance of the inspectors, must yield to the specific
provisions of the law relative to the effect of a mark placed by the voter on
the ballot. We refer to section 146 of the same Code which provides that the
board of inspectors shall “determine whether there are any marked ballots, and,
if any be found, they shall be placed in a package labelled ‘Marked Ballots for
National Offices’ or ‘Marked Ballots for Local Offices’ as the case may be, * *
* and shall not be counted” These provisions contain a mandate to the
inspectors that marked ballots must be placed in a sealed envelope and should
not foe counted. The logical inference is that the mark has the effect of
nullifying the whole ballot.

The philosophy underlying this provision is undoubtedly to protect and
maintain the secrecy of the ballot whicfy is the cardinal feature of our
election law, and in order that this fundamental purpose may be fully achieved
Congress took special care in providing that any person who “puts (on the
ballot) any distinctive mark” or who “makes use of any other means to identify
the vote of the voter” may be amenable to crinimal prosecution (section 135, in
connection with section 183, Revised Election Code).

Indeed, “the statute making invalid any ballot containing any mark or device
enabling it to be identified, is designed to prevent a voter from giving
information to some interested person as to the way in which he voted”
(Mansfield vs. Scully, 29 A. 2d 444, 129 Conn. 494). The interpretation
which appellant wants lis to adopt in considering these ballots would defeat
this fundamental purpose. We find no valid reason for such interpretation
because a voter who marks his ballot forfeits his right to vote. His vote
becomes null not only for one but for all the candidates.

The decision appealed from being in accordance with law, is hereby affirmed,
with costs against appellants

Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Labrador,
Concepcion, and Reyes, J.B.L., JJ., concur.

Judgment affirmed.