CONSUELO V. CALO, JOSE T. GONZALEZ, PASTOR D. AGO, GENARO B. ASIS AND VICENTE C. ROSALES, PETITIONERS, VS. HON. MANUEL L. ENAGE, AS DISTRICT JUDGE OF THE COURT OF FIRST IN­STANC…

Calo versus Enage

The Case

This is a special civil action of certiorari, prohibition and mandamus brought by Consuelo Calo, Jose Gonzalez, Pastor Ago, Genaro Asis and Vicente Rosales — the losing-side candidates for Governor, Vice Governor and board member of Agusan in the November 1967 elections — against Judge Manuel Enage of the Court of First Instance of Agusan and the provincial board of canvassers. The respondent judge had ordered a judicial recount of votes and restrained the canvassing, on the petition of the rival Nacionalista candidates who claimed that their party's copies of the election returns showed them larger votes than the copies sent to the provincial treasurer. The case matters because it fixes the rule that a judicial recount under the election law may be grounded only on a discrepancy among the copies of the election returns that the law itself requires, and not on a discrepancy involving the extra copies furnished to political parties.

Procedural History

The respondent candidates filed a petition before the Court of First Instance of Agusan presided over by Judge Enage, asking for a recount of the votes and for an injunction against the provincial board of canvassers. On December 1, 1967, Judge Enage issued the order complained of, directing a judicial recount in certain municipalities and restraining the board from canvassing the returns for Governor, Vice Governor and board members. The petitioners then came directly to the Supreme Court on a petition for certiorari, prohibition and mandamus to annul that order. The Supreme Court issued a temporary restraining order on December 4, 1967, enjoining enforcement of the lower court's writ of preliminary injunction and the recounting of ballots, while allowing the canvassing to proceed. The canvassing was finished on December 13, 1967, but no proclamation had been made pending the decision.

Facts

In the elections of November 14, 1967, the petitioners and the private respondents were rival candidates for the provincial offices of Agusan — Governor, Vice Governor and board members. The private respondents belonged to the Nacionalista Party, while the petitioners ran as unofficial Nacionalista candidates.

The private respondents went to the Court of First Instance of Agusan, claiming that the copies of the election returns marked "copy for the Nacionalista Party" gave them a different and larger number of votes than the corresponding copies transmitted to the Provincial Treasurer of Agusan, and that the discrepancy materially and substantially affected the results — enough, they said, to make them the duly elected provincial officials instead of the losers.

Judge Enage granted them relief on December 1, 1967, ordering a judicial recount and restraining the provincial board of canvassers from canvassing the returns. The petitioners insisted that the board had not even begun canvassing, and that in any event a discrepancy between the party's copy and the provincial treasurer's copy is not a ground for a judicial recount under the election law.

Issues

• Whether or not a judicial recount may be ordered where there is a variance between the copy of the election returns in the hands of the provincial treasurer and another copy of the same returns given to one of the major political parties.
• Whether or not the respondent judge acted in excess of jurisdiction and with grave abuse of discretion in ordering the recount before the provincial board of canvassers had started canvassing the returns.

Applicable Provisions

Section 163 of the Revised Election Code provides:

When statements of a precinct are contradictory. - In case it appears to the provincial board of canvassers that another copy or other authentic copies of the statement from an election precinct submitted to the board gives to a candidate a different number of votes and the difference affects the result of the election, the Court of First Instance of the province, upon motion of the board or of any candidate affected, may proceed to recount the votes cast in the precinct for the sole purpose of determining which is the true statement or which is the true result of the count of the votes cast in said precinct for the office in question. Notice of such proceeding shall be given to all candidates affected.

This is the very provision under which the recount was ordered, and the whole case turns on what "another copy or other authentic copies" means.

Ruling

On the first issue, the Court held that the discrepancy which justifies a judicial recount is only such as appears in the different copies of the election returns required to be accomplished under the Code. The Court recalled its earlier ruling in Acuña versus Golez, quoting it:

Section 150 of the Revised Election Code provides that 'immediately after the count, the Board of Inspectors shall make, complete and sign a written statement thereof in quadruplicate' (underscoring ours.) The four (4) copies of this statement, otherwise referred to in Section 151 as 'election returns,' must, pursuant to Section 152 of said Code, be distributed as follows: one copy shall be placed in the box for valid ballots, another copy shall be delivered to the municipal treasurer, the third copy shall be sent by registered mail to the provincial treasurer, and the fourth shall be forwarded, likewise, by registered mail, to the Commission on Elections. Pursuant, however, to a resolution of the Commission on Elections in Case No. 488 thereof, the two (2) major political parties are provided with one (1) copy each of the election return for each precinct.

And further, from the same decision:

In using the aforementioned phrase, the framers of the Revised Election Code evidently had in mind the four (4) copies mentioned in Section 150 thereof . . . . In other words, the lawmakers could not have referred to any other copies, for no such copies were prescribed in the Code.

The Court stressed that Section 163 must be construed restrictively because of the special nature of the authority it confers, and because otherwise that authority could be used to delay proclamation beyond the date set for the beginning of the term — leaving national offices without an incumbent, or allowing a losing local candidate to extend his tenure at the expense of the elected one. The Court also warned that treating the party copy as a basis for recount would open untold opportunities for a candidate to tamper with his party's copy and, on the artificial discrepancy thus created, demand a recount and delay or prevent his opponent's proclamation. The extra copies are valid and may even discourage tampering, but they cannot serve as a legal basis for comparison with the copies prescribed by the Code.

On the second issue, the Court found that the respondent judge's order flew in the face of the settled interpretation of Section 163 and should be stricken down.

Doctrine

A judicial recount under Section 163 of the Revised Election Code lies only where there is a discrepancy among the copies of the election returns that the Code itself requires — the four copies under Sections 150, 151 and 152. A variance between the provincial treasurer's copy and the extra copy furnished to a political party is not a ground for recount. Section 163 is construed restrictively, because the authority it confers is special and could otherwise be used to delay proclamation beyond the start of the term. The rationale is prophylactic: to deny candidates the temptation to manufacture a discrepancy in their own party's copy and thereby stall the proclamation of a winning opponent.

Disposition

The Court set aside the December 1, 1967 order of Judge Enage and directed the provincial board of canvassers to proceed with the proclamation of the winning candidates, at the respondents' cost.

Remember This

Memorize the line: only a discrepancy among the copies required by the election law justifies a judicial recount; the party's extra copy never does. Examiners use this case to test the restrictive construction of Section 163 and the policy against using a manufactured discrepancy to delay proclamation.