VIRGINIO A. ASTILLA, PETITIONER, VS. HON. ELIAS B. ASUNCION, JUDGE OF THE COURT OF FIRST INSTANCE OF LEYTE, BRANCH IV, CITY BOARD OF CANVASSERS OF TACLOBAN CITY AND BARTOLOME LA…

This is an original action for certiorari to review an order, issued
by respondent Hon. Elias B. Asuncion, as Judge of the Court of First
Instance of Leyte, in Election Case No. 3415 thereof, denying the
petition therein filed by Virginio A. Astilla and dismissing the same
without costs.

Said Virginio A. Astilla was candidate for councilor of the City of
Tacloban at the general elections held on November 12, 1963. On
November 16, 1963, Astilla filed with said court a petition, docketed
as Election Case No. 3415, praying that the board of election
inspectors of Precinct No. 65 of Tacloban City be ordered to amend the
election return for said precinct by crediting to Bartolome Lawsin,
another candidate for city councilor, and one of the respondents in the
case, as well as in the case at bar, sixty-five (65) votes, instead of
seventy-five (75) votes, as set forth—erroneously, according to
Astilla—in the copy of said return for the City Treasurer of Tacloban,
because, according to the certificates of votes issued by said board of
inspectors, Lawsin had obtained only sixty-five (65) votes in said
precinct, and the discrepancy between this certificate and the
aforementioned return affects the result of the election, for, if the
correction prayed for were made, Astilla would be deemed elected to
said office, instead of Lawsin, who would otherwise have a plurality of
two (2) votes over Astilla.

Vicente Arante, Modestor Acito, and Gloria A. Bagares, chairman,
member and poll clerk, respectively, of said board, expressed their
willingness to make the correction prayed for. Upon the other hand,
respondent Lawsin filed an answer alleging lack of sufficient knowledge
or information to form a belief as regards the error averred in the
petition, and moved to dismiss the case upon the ground that the court
has no jurisdiction to try the same and that the petition does not
state a cause of action. In her answer, Consolacion Pensona, the third
member of said board, in turn, denied the error alleged in said
election return and stated that she did not consent to the
aforementioned correction.

After appropriate proceedings, the lower court, presided over by
respondent Judge, concluded that the members of the board of inspectors
were not unanimously in favor of the correction sought by Astilla, and,
after analyzing the cases of Benitez vs. Paredes (52 Phil., 1), Aguilar
vs. Navarro (55 Phil., 895), Board of Election Inspectors vs. Sison (55
Phil., 914), Clarin vs. Alo. 94 Phil., 432), Rabe vs. Commission on
Elections, (108 Phil., 260), and Gumpal vs. OFI of Isabels'(110 Phil.,
287), issued the order complained of, holding that it did ‘not find any
leg to stand on in granting the petition”, which it, accordingly,
denied.

Upon failure to secure a reconsideration of this order, Astilla
commenced the present action against the Board of Canvassers of
Tacloban City, Judge Asuncion and Bartolome Lawsin. Thereupon, and upon
the filing of a bond for P1,000, we issued ex parte, as prayed
for in the petition herein, a writ of preliminary injunction enjoining
respondents herein, their agents and/or representatives from canvassing
the election return for Precinct No. 65 of the City of Tacloban and
from proclaiming Bartolome Lawsin as councilor-elect of said city.
However, by a resolution of this Court, dated February 11, 1964, issued
after both parties had argued orally on the merits of the case, said
writ of preliminary injunction was dissolved.

At the outset, it should be noted that, contrary to the allegation
made in paragraph (13) of the petition herein, it is not true “that all
the members of the Board of Inspectors have unanimously admitted the
error of crediting respondent Lawsin with seventy-five (75) votes when
in truth and in fact he obtained only sixty-five (65) votes”. As above
pointed out, election inspector Consolacion Pensona denied, in her
answer, the error alleged in the petition filed with the lower court
and explicitly affirmed that she did not consent to the correction
sought by Astilla. Moreover, during the hearing of Case No. 3415 before
said court, she explained her stand as follows: The seventy-five (75)
votes reported in the election return in favor of Lawsin and the
sixty-five (65) votes credited to him in the tally-board used in
Precinct No. 65 indicate that there must be an error somewhere; but she
does not know which of the two (2) documents is correct. So, she would
consent to the aforementioned correction only if Astilla’s alleged
error were first confirmed by a recount.

It is clear from the foregoing that she was not agreeable to said
correction, unless justified by a previous recount of the contents of
the corresponding ballot box.

Since no such recount had been made, not only because Astilla had
withdrawn a petition for recount filed by him, but, also, because no
such recount could be made, for, at the hearing of the case at bar
before this Court, petitioner admitted that there is no discrepancy between the different copies of the election return for Precinct No. 65
of Tacloban City, we hold that respondent Judge, had correctly found
that inspector Pensona had neither admitted the alleged error in said
election return nor given her consent to its correction.

Now, then, in Gumpal vs. Court of First Instance of Isabela (supra), we held:

“3. Section 154 of the Revised Election Code does
not specify the party who may institute the proceedings therein
contemplated. Upon the other hand, it is already well settled that the
alteration therein provided may not be sanctioned unless the members of
the corresponding board of election inspectors are unanimous on the
existence of an error in the return and are willing to rectify the
same. (Benitez vs. Paredes and Dizon, 52 Phil., 1; Board of Inspectors
of Bongabong vs. Sison, 55 Phil., 914). So long therefore, as these
conditions are present and the proceedings have been instituted by a
party who has a justiciable interest in the matter, the court may
authorize the aforementioned correction. A candidate affected by the
alleged mistake has such justifiable interest.”

There being, in the present case, no unanimity among the members of
the board of election inspectors of Precinct No. 65, respondent Judge
could not grant the relief sought by petitioner herein, consistently
with the views of this Court in the Gumpal case, which are but a
reiteration of the doctrine adhered to in the other cases above cited.
Neither do we find any plausible reason to modify the rule thus settled
in this jurisdiction.

Under the provisions of our laws, regular elections shall take place
on the second Tuesday of November of specified years and the national
and local officers then elected shall assume office on the thirtieth
day of December and the first day of January, respectively, next
following (Sections 6 and 7, Rep. Act No. 180). For this reason, the
different boards of canvassers are required to meet as follows: (a)
Congress, within 15 days after the thirtieth day of November next
following the election, to canvass the votes for President and
Vice-President (Section 166, do.) ; (b) the Commission on Elections,
thirty (30) days after the election, to count the votes cast for
Senators (do., do.) ; (c) the provincial and city boards of canvassers,
within fifteen (15) days next following the day of the election, to
canvass the votes cast in the province for national, provincial and
city candidates (Section 160, do.); and (d) the municipal boards of
canvassers, immediately after the election, to count the votes cast for
municipal offices (Section 168, do.).

Owing to the limited period of time available to make the canvass
and proclamation prior to the date set for the assumption of office,
this Court has construed section 154 of the Revised Election Code,
reading:

“After the announcement of the result of the
election in the polling place, the board of inspectors shall not make
any alteration or amendment in any of its statements, unless it be so
ordered by a competent court.”

(a) as authorizing merely a summary proceeding:, taken before
the proclamation of the results of the election (Aguilar vs. Navarro,
55 Phil., 898); (b) as not allowing the exercise of the judicial power
therein provided for, except when there is unanimity among the members
of the corresponding board of inspectors (Benitez vs. Paredes, supra)
; (c) as conferring judicial discretion to exercise or not to exercise
said power (Board of Election Inspectors of Bongabong vs. Sison, 55
Phil., 914); and (d) as not permitting an appeal from the action taken
by said court (Board of Election Inspectors of Bongabong vs. Sison, supra).

Indeed, if the issue were contentious in nature or an appeal were
allowed, the canvass and proclamation of the result of the election
would, in all probability, be so delayed that the newly elected
officers would be deprived of the right to assume office on the date
set by law for the commencement of their respective terms. Upon the
other hand, the outgoing local officials would thus hold over, to the
detriment of the newly elected officers and of the electorate. There
being, in general, no hold over, as regards national elective offices,
the effect thereto of the delay in the canvass and proclamation would
be to bring about a temporary vacancy in positions which are so
important and sensitive as to seriously jeopardize not only public
policy, but, also, public interest.

Upon the other hand, in the answer filed by the chairman of the board of inspectors of Precinct No, 65, he alleged:

“3. That, as Chairman of the Board of Election
Inspector in Precinct No. 65, he prepared the election returns in seven
comes placing six carbon papers for the six copies. But, after
completing said returns, the herein respondent found that only the
original and the next two copies were legible. The fourth copy was
blurred while the remaining three copies were entirely blank. So the
poll clerk prepared the ether copies of the returns,

“4. That it is possible
a mistake was made in preparing the election returns because of
exhaustion, hunger, and lack of sleep. The mistake must have been in
copying the number of votes for each, candidate as recorded in the
tally board which was made the basis for the oral and public
announcements made by the Chairman of the total number of votes
received by each candidate and said tally board was duly checked up
with the tally sheet and found correct.” (Italics supplied.)

A similar allegation was made in the answer of inspector Ecito. In
other words, they would have us believe that there might have been a
mistake in the preparation, not of all of the election returns, but
only of four (4) copies thereof. Yet, it is not claimed that the
entries in the latter are different in any manner whatsoever from those
contained in the three (3) other copies thereof. What is more,
petitioner stated before this Court that all copies of the election return for said precinct are identical
as regards the number of votes therein reported. And this explains why
the petition for recount filed by petitioner was withdrawn by him.

Moreover, we do not see how a court could—without a recount, and,
hence, without reasonable knowledge of the pertinent facts—order the
correction of an election return, signed by, among others, a member of
the board of election inspectors, who is unwilling to make said
correction, because she does not know whether or not an error has been
committed in said return. The correction, if made under the
circumstances obtaining herein, would have the effect of making it
appear that said election inspector had certified to the correctness of
something which he or she is unwilling to attest.

Wherefore, the writ prayed for is hereby denied and the case dismissed, with costs against the petitioner.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Reyes, J. B. L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.