VICENTE ACAIN AND JOSE MALIMIT, PETITIONERS, VS. BOARD OF CANVASSERS OF CARMEN, AGUSAN, VILLAMOR DIZON, COMMISSION ON ELECTIONS, FELINO PALARCA AND ESTEBAN DEGAMO, RESPONDENTS.

In the general elections held on November 10, 1959, Jose Malimit and
Esteban Degamo were candidates for Mayor, whereas Vicente Acain and
Felino Pelarca ran for vice-mayor, of the municipality of Carmen,
province of Agusan. On November 16, 1959, the municipal board of
canvassers met in the house of Malimit, and, by the vote of five (5) to
three (3), proclaimed Malimit as mayor-elect with a plurality of
forty-five (45) votes over his closest opponent, Degamo. It suspended
the canvass and proclamation of the candidate elected for vice-mayor at
the behest of Acain, for his name did not appear in the election
returns for precincts Nos. 4 and 5, which did not state whether or not
he had obtained any vote therein, although he claimed to have received
votes in those precincts. Three (3) members of the board of canvassers,
including the municipal treasurer, objected to said proclamation of
Malimit as mayor-elect, and refused to sign the certificate of canvass,
upon the ground that the municipal treasurer’s copy of the election
return for precinct No. 6 had been tampered with during the canvass, by
making it appear that; the votes obtained by Malimit in said precinct
were one hundred thirty-nine (139), instead of thirty-nine (39), which
was claimed to be the number originally written on said return.

The issue having been brought to the Commission on Elections, the
same found, by a Resolution dated November 24, 1959, that the claim of
the three (3) members of the board regarding the tampering of said
election return was true, and that the other five (5) members of the
board who signed the certificate of canvass and proclamation were
guilty of falsification thereof, for having stated thereon that the
aforementioned three (3) members were absent, apart from violating
subparagraph k, paragraph 4, Part IV, of Resolution No. 334 of the
Commission, directing boards of canvassers, in the event of conflict
between several statements of the election results regarding the number
of votes obtained by a given candidate, when the difference may affect
the result, to suspend the canvass and proclamation with respect to the
office concerned, while the aggrieved party sought a recount before the
proper court. Accordingly, the Commission annulled the canvass and
proclamation made on November 16, 1959, ordered a recanvass of the
votes for mayor and vice-mayor for Carmen, Agusan, suspended the five
(5) members of the board of canvassers who made said proclamation, and
authorized Atty. Villamor Dizon, the representative of the Commission
in Agusan, to appoint substitutes. Acting pursuant to instructions of
the Commission, said Atty. Dizon appointed the provincial fiscal, the
provincial treasurer, the provincial auditor, the division
superintendent of schools, and the district highway engineer as
substitute members of the board of canvassers. On December 3, 1959,
Malimit filed with the Supreme Court a petition for certiorari and
prohibition, with a writ of preliminary injunction to annul the
aforementioned resolution of the Commission on Elections and prevents
its enforcement in the meantime, but, by minute, resolution dated
December 4, 1959, said petition (G. R. No. L-16310) was “dismissed for
lack of merit.” So, the board of canvassers with said five (5)
substitute members, met on December 7, 1959. It made a recanvass, using
insofar as precinct No. 6, the provincial treasurer’s copy of the
election return, and proclaimed Esteban Degamo and Felino Palarca
elected as mayor and vice-mayor by 1,012 and 944 votes, respectively,
as against 957 and 483 votes of Jose Malimit and Vicente Acain,
respectively, their closest opponents.

On January 4, 1960, Malimit and Acain instituted the present action
of prohibition, mandamus and certiorari, with preliminary injunction,
to prevent the enforcement of said proclamation and the assumption of
office by Degamo and Palarca, and, after due hearing, to set aside mid
proclamation, upon the ground that the same is null and void, because
the substitute members of the board of canvassers that made said
proclamation were not electors of Carmen belonging to the party of the
suspended and substituted members of said board, and because
petitioners had requested a suspension of the recanvass in order to
secure from the proper court a recounting of the votes in precincts
Nos. 4, 5 and 6, but the request was denied, thereby depriving them of
a reasonable opportunity to have the aforementioned recount.

Upon the filing of the requisite indemnity bond, this Court issued
on January 7, 1960, the writ of preliminary injunction prayed for. It
appears, however, that at the time of the filing of the petition,
Degamo and Palarca were not merely “threatening to assume the office of
mayor and vice-mayor respectively,” as alleged in the petition, but had
already assumed said offices, which they held since January 1, 1960,
the date fixed by law therefor. What is more, petitioner Malimit had
filed with the Court of First Instance of Agusan a petition for a writ
of quo warranto and an election protest against Dagamo on December 17
and 28, 1959, respectively. So, on March 11, 1960, Degamo and Palarca
moved for the immediate dissolution of said writ of preliminary
injunction, alleging that, prior to the issuance thereof, and even
before the institution of the present proceedings, or on January 1,
1960, said respondent had already assumed their offices as mayor and
vice-mayor, respectively, of Carmen, Agusan.

Upon the foregoing facts, it is our view that petitioners herein are not entitled to the relief prayed for, inasmuch as:

1. The question whether respondents Degamo and Palarca should
   be prevented from assuming the offices of mayor and vice-mayor,
   respectively, of Carmen, Agusan, has become mooted by reason of their
   assumption of said offices before the filing of the petition herein.

2. An injunction may be availed of only to restrain an act that is about
   to be done, but which has not materialized as yet, not to undo what has
   already been consummated (Municipal Council of Santa Rosa vs. Provincial Board of Laguna, 3 Phil., 206; Matilde vs. Cajucom, 19 Phil., 563; Reyes, vs.
   Harty, 21 Phil., 422). Having assumed office, upon the authority of the
   proclamation made by the board of canvassers, backed up by the
   Commission on Elections, Degamo and Palarca have a color of title to
   the offices respectively held by them, and, accordingly, they enjoy, at
   least, the rights of a de facto officer, among which is that
   their.title to said offices may not be contested except directly, by
   writ of quo warranto and/or by election protest, not indirectly by
   questioning the regularity of their proclamation (Tayko vs. Capistrano, 53 Phil., 866, 873; Government vs. Binañgonan,
   28 PhiL, 116; Mechem, Public Officers, sec. 344). An injunction is not
   an appropriate remedy for the removal of an officer or the
   reinstatement of one removed without cause (Silen vs. Vera, 64 Phil., 868).

3. Section
   167 of the Revised Election Code (R.A. No. 180, as amended), providing
   for the appointment to municipal boards of canvassers of “registered
   voters of the same party” as the members of said boards excluded
   therefrom, applies only when the latter “are candidates” for election,
   not when temporary substitutes are appointed due to the suspension of
   members, under section 3 of said Code, on account of irregularities
   committed in the discharge of their duties relative to the conduct of
   elections, as in the case at bar.

4. Petitioners
   herein have had ample time, from November 16 to December 7, 1959, or
   over twenty (20) days, the first canvass by the board of canvassers,
   within to seek a recount of votes by the Court of First Instance of
   Agusan. Yet they did not do so within said of time.

5. Upon
   the filing of the aforementioned petition for a of quo warranto and
   election protest on December 17 and 28, 1959, respectively, the Court
   of First Instance of Agusan acquired exclusive authority to inquire
   into and pass upon the title of Degamo and the validity of the
   proclamation made by the municipal board of canvassers on December 7,
   1959. We cannot, upon the authority of the petition herein, filed on
   January 4, 1960, determine said questions without encroaching upon the
   jurisdiction of said court of first instance, which it is the duty of
   this body, as the highest Court of the land, not only to respect, but,
   also, to uphold.

Wherefore, the petition herein is dismissed, and the aforementioned
writ of preliminary injunction dissolved, with costs against
petitioners Jose Malimit and Vicente Acain. It is so ordered.

Paras, C. J., Bengzon, Bautista Angelo, Labrador, Barrera, and Gutierrez David, JJ., concur.
Reyes, J.B.L., J., took no part.