GREGORIO B. MORALEJA, PETITIONER, VS. HON. LORENZO RELOVA, JUDGE OF THE COURT OF FIRST INSTANCE OF BATANGAS, BRANCH I, AND CESAR A. MENDOZA, RESPONDENTS.

Petition for review of the decision of the Court of First
Instance of Batangas in Civil Case No. 1201, an
electoral protest filed by Cesar Mendoza, a candidate for councilor of the
Municipality of Batan­gas, Batangas,
in the elections held on November 14, 1967, against Gregorio Moraleja, the candidate for the same position who was
proclaimed by the Municipal Board of Canvassers as winner over the former by a
plurality of 27 votes declaring respondent Mendoza as the duly elected eighth
councilor of said municipality with a plurality of one (1) vote over petitioner
Moraleja. 
Grounds alleged in the petition filed with this Court on September 3,
1969 are:  (1) the trial court erred in
not dismissing the protest notwithstanding that respondent Mendoza, after the
election and during the pendency of the electoral
contest, had accepted the position of Technical Assistant to the Vice-Governor
of Batangas Province and was already discharging the
functions of said position, thereby either disqualifying himself or abandoning
said protest; (2) the trial court erred in rejecting twenty-one (21) ballots
where­in petitioner appears voted for, allegedly because said ballots bear the
signatures of the respective voters; (3) the trial court erroneously ruled as
valid a ballot wherein respondent Mendoza appears voted for notwith­standing it
was found in the red box for “spoiled bal­lots”; (4) the trial court
erroneously counted as valid three (3) ballots wherein respondent Mendoza
appears voted for notwithstanding they are marked ballots; (5) the lower court
erred in not counting in favor of peti­tioner six (6) ballots wherein his name
appears voted for; and (6) the lower court erred in not rejecting eight (8)
ballots wherein the surname Mendoza only is written in two spaces for councilor,
notwithstanding there are two candidates with the same surname Mendoza for the
same position of councilor.

On September 5, 1969,
this Court resolved to deny the petition, “the issues (t)herein not being
purely questions of law,” hence not within the appel­late jurisdiction of
the Court.  The position in controversy
being that of municipal councilor, under the law, the Revised Election Code,
Republic Act No. 180, as amended, the decision of the Court of First Instance is
final and unappealable except on questions of
law.  (Calano
v. Cruz, 94 Phil. 230)

In due time, petitioner filed a motion for reconsideration
alleging that by virtue of Republic Act 5495, the Municipality of Batangas became a city on June 21, 1969 and, consequently,
the position involved herein is no longer that of a municipal counci­lor but is
instead that of a city councilor, hence under Section 178 of the Revised
Election Code, then in force, the decision of the court a quo is
already appealable even on questions of fact, for
which reason, this appeal should be certified to the Court of Appeals.  A written opposition to this motion was filed
by respondent Mendoza, and after due hearing, the Court resolved to give due
course to the petition, not because of the point raised by petitioner regarding
the conversion of Batangas into a city, but because,
upon further consideration of the grounds of the petition, the consensus in the
Court is that some of said grounds might indeed be considered as pure issues of
law.  As to the matter of the conversion
of Batangas into a city, We have already ruled in a
similar case that such conversion, having taken place after the election in
dispute, cannot alter the nature of the office or posi­tion involved in the
protest.  (Jose Sol Baloria
v. Hon­orable Doroteo de Guzman, G. R. No. L-33097,
promulgated September 30, 1971.)

The first question of law raised in the petition is whether or
not the acceptance by respondent Mendoza
of an appointment to the position of Technical Assist­ant to the Vice-Governor
of Batangas Province consti­tutes either a
disqualification from the office in dispute or an abandonment of his protest
against the elect­ion of petitioner. 
Petitioner cites in support of the alleged ineligibility of respondent
Section 2175 of the Revised Administrative Code providing as follows:

“SECTION 2175.  Persons
ineligible to municipal office.- In no case shall there be elected or
appointed to a municipal office ecclesiastics, soldiers in active service,
persons receiving salaries or compensation from provincial or National funds,
or contractors for public works of the municipality.”

Such reliance is unavailing. 
To begin with, the alleged ineligibility arose after the elections had
already been held, and it is quite clear that a candidate’s eligibility must be
judged as of the date of the election. 
In any event, this Court held more than a decade ago that ineligibility
of the protestant is not a defense in an election contest not only because it
is incongruous with the only issue therein, which is who obtained the higher
number of votes, but is also pre­mature, inasmuch as such issue may be raised
only after the candidate has been proclaimed and the protestant is not
proclaimed until after he has been declared winner by the court, apart from the
fact that if a protest is dismissed only because the protestant is ineligible,
the result would be that protestee would be in
office  though in fact he received fewer
votes than the former.  (Caesar v. Garrido, 53 Phil. 97, 102-103.)

As to the contention that by accepting such appoint­ment as
Technical Assistant, protestant has abandoned his protest, all that need be
said is that once the court has acquired jurisdiction over an election contest,
the pubic interest involved demands that the true winner be known without
regard to the wishes or acts of the parties, so much so that there can be no
default, compromise nor sti­pulation of facts in this kind of cases.  (Francisco, How to Try Election Cases, p.
163, citing Civilio v. Tomacruz,
62 Phil. 689) In the same manner that the acceptance by the protestee
of an appointment to another position is not a ground for dismissal of the
protest (Philippine Law on Elections by Martin, 1970 ed., pp. 258-259, citing
Castro v. Maramba, G. R. No. 13206, January 7, 1918)
like the resignation of the protestee from the
contested office (Angeles v. Rodriguez, 46 Phil. 595), simply because it is of
public interest that the real winner be known, neither can the acceptance of a
more or less temporary employment, such as that of a technical assistant of the
Vice-Governor, which is a primarily confidential position, be considered as
inconsistent with protestant’s determination to protect and pursue the public
interest involved in the matter of who is the real choice of the electorate.  In such instan­ces, the plight of protestant
may be viewed in the same light as that of an employee who has been illegally
dis­missed and who, to find means to support himself and family while he
prosecutes his case for reinstatement, accepts a temporary employment
elsewhere.  Such employee is not deemed
to have abandoned the position he seeks to recover.  (Tan v. Gimenez, et
al., G. R. No. L-12525, February 19,
1960, 107 Phil. 17; Potot v. Bagano, G. R. No. L-2456, January 25, 1949, 82 Phil. 679) Of course, the case of a
protestant who accepts a permanent appointment to a regu­lar office could be
different, but We are not ruling on it here.

The other ground of the petition which raises a legal question is
that referring to the ruling of the trial judge in favor of the validity of the
ballot, Ex­hibit CP-18 “A”, wherein respondent appears voted for
which was found during the revision in the red box for spoiled ballots.  In this connection, We hold as a mat­ter of
law that the mere fact that a ballot otherwise bearing no sign or indication of
being legally a spoiled one is found in the course of the trial of an election
contest, which includes, of course, the revision of the ballots by the court revisors, inside the red box for spoiled ballots does not
preclude the court from determining whether or not it is a valid ballot
mistakenly or inadvertently placed in said red box, (Ignacio v. Navarro, 57
Phil. 1000) and since the court a quo has found as a fact that
the ballot in question is a valid one, it is beyond our faculty to set aside
His Honor’s questioned ruling, the same being a finding of fact.

Anent the allegation of petitioner that three bal­lots, namely,
Exhibit CP-93 “A-25”, wherein respondent Mendoza appears voted for,
but below the eighth or last name voted for councilor,^[1]
the voter wrote as follows:  “Pasensya na ang
hindi kasama“, Exhibit
CP-59 “A-3”, containing also a vote for respondent Mendoza and
wherein there is also a vote for Casas-Garapon as
councilor, the registered surname of one candidate for councilor be­ing Casas, and Exhibit CP-98 “A-14″, likewise
containing a vote for said respondent, but wherein in the line for
Vice-Governor appear the words ” ‘Bomba’ Arienda“, which is not exactly the name of any of the
candidates for said position, it is the unanimous opinion of the mem­bers of
the Court that the trial judge committed no er­ror in counting as valid ballots
Exhibits CP-59 “A-3” and CP-98 “A-14”, since the word
“Garapon” in the former appears no more
than a descriptio personae, (Pangontao v. Alunan, G. R. No.
L-18926, November 20, 1962, 6 SCRA 853) and the word “Bomba”
in the latter evidently refers to the name by which the candidate Roger Arienda is popularly known as a radio-commentator.  There is also una­nimity in the Court in
holding, on the other hand, that His Honor erred in not considering the
sentence “Pasiensya na
and hindi kasama” in
Exhibit CP-93 “A-25”, as an identifying mark which invalidates the
ballot.  We find no relevance in said
statement to the votes cast.  Indeed, it
is high time voters learned that any irrele­vant remark placed on the ballot
which can readily be used as a means of identification directly violates
Section 135 of the Revised Election Code, as amended by Republic Act 599, which
makes it “unlawful to use . . . any . . . means to identify the vote of
the voter.”

As to the rest of the grounds of the petition, it is Our
considered view that they involve questions of fact which are not within the
legitimate scope of this appeal.  Of like
nature are the issues raised in respondent Mendoza’s counter-assignments of
error.  Un­like in the case of the three
ballots just discussed, the proper appreciation of the other ballots claimed by
petitioner and respondent requires the presentation of evidence aliunde and the evaluation thereof by the Court,
since the specific objections thereto are fact­ual in nature.  The writing of the name of a non-candidate on
any space intended for an office in a ballot may be considered as an
identifying mark only when there is proof that such was the intent of the voter
because an identification mark cannot be presumed.  (Jaucian v. Carlos,
104 Phil. 603)

It results, therefore, that with the nullifica­tion of Exhibit
CP-93 “A-25”, a vote for respondent Mendoza, the majority of one vote
found in his favor by the trial court is offset, and the election herein in
question has to be declared as having ended in a tie which pursuant to Section
170 of the Revised Election Code calls for the drawing of lots between the tied
candidates.

ACCORDINGLY, judgment is hereby rendered revers­ing the
decision of the court a quo. 
The records of this case shall immediately be remanded to the lower
court and the said court is ordered to call the parties on any convenient date
not later than five days after receipt of the said records and to then and
there make them draw lots under its supervision, and the winner shall be
proclaimed by the trial judge as the duly elected eighth councilor of Batangas City in the elec­tions of November 14, 1967.  In the public interest, the circumstance of
time so demanding, this decision is hereby declared to be immediately executory.  No costs.

Concepcion, C.J., Reyes, Makalintal, Zaldivar, Fernando, Villamor, and Makasiar, JJ., concur.

Castro, J., did not take part.

Teehankee, J., concurs and dissents in a brief opinion.

^[1]
Election was only for eight councilors.

150
Clean
Clean
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