LUIS C. TRINCHERA, PETITIONER-APPELLANT, VS. CESARIO R. COLASITO, RESPONDENT AND APPELLEE.

On February 10, 1948, in obedience to an order of the Court of First Instance
of Leyte, the Municipal Board of Canvassers of Tolosa, proclaimed Cesario R.
Colasito as mayor elected in the elections of.November 11, 1947, with one
thousand thirty votes or a majority of thirty eight over his opponent, Luis C.
Trinchera, who received nine hundred ninety two votes.

On February 23,
1948, Trinchera filed a protest alleging that sixty stray votes were unlawfully
adjudicated to Colasito in Precinct No. 3, while thirty nine votes validly cast
for Trinchera in Precincts Nos. 3, 6, and 7 were not counted in Ms favor, and
that, otherwise, Trinchera would have won the election.

On February 28, 1948, Colasito filed a motion to dismiss the protest alleging
that the question therein raised has been already decided in the mandamus
proceedings No. 143 of the Court of First Instance of Leyte and the resolution
of the Supreme Court in L-1887; that the motion of protest could have been
properly presented as a counter protest in election protest No. 314 of the Court
of First Instance of Leyte, and Trinchera’s failure to do so constitutes a
waiver of his right to raise the question at any other time; and that the motion
of protest was filed out of time.

On March 19, 1948, the lower court issued an order dismissing the protest,
with costs against Trinchera, upon the ground that the points at issue in the
protest had been finally decided by the Supreme Court in its resolution in
L-1887.

The order appears to be erroneous, and Trinchera appealed. The resolution of
this Court dismissing the petition in L-I887, issued on January 28, 1948, reads
as follows:

“Petitioners in The Board of Election Inspectors et al vs. Edmundo
S. Piccio, Judge of the Court of First Instance of Leyte, et al., L-1887, prayed
for the issuance of a writ of certiorari for the annulment of the
orders of respondent judge of December 5 and 13, 1947, in mandamus case
No. 143, Colasito vs. The Board of Election Inspectors, et al, of the
Court of First Instance of Leyte, and that the petition for mandamus in said
case be ordered dismissed.

“It is alleged that in the elections of November 11, 1947, Cesario R.
Colasito and Luis C. Trinchera were candidates for mayor of Tolosa. On November
12, 1947, the municipal board of canvassers made a canvass and proclaimed Luis
C. Trinchera as mayor-elect. On November 15, Cesario R. Colasito filed with the
Court of First Instance a petition for mandamus with preliminary
injunction (a) to prevent the board of election inspectors from making
a final election return for precinct No. 8 of Tolosa, unless the same is in
accordance with the true result of the election, (b) to prevent the
municipal treasurer from submitting to the board of canvassers a false election
return for precinct No. 8, and (c) to order the board of election
inspectors to file an election return in accordance with the true result of the
election as regards the office of mayor, to order the municipal treasurer to
submit the true election return to the municipal board of canvassers, and to
order the latter to proclaim Cesario R. Colasito elected mayor in the election
of November 11, 1947.

“The petition is based on the allegation that in a certificate issued by the
election inspectors of precinct No. 8 appears that the votes cast for mayor
were: 112 for Cesario R. Colasito and 92 for Luis C. Trinchera, but the board of
inspectors issued a false return giving to Colasito only 62 votes Instead of the
112 he received in the election, and gave Trinchera 142. votes instead of 92
which he received in the elections, and the changes made in the election returns
had the effect of changing the result of the election.

“Motion to dismiss the petition for mandamus with injunction was
denied. A motion to reconsider the order of denial met with the same fate. Judge
Edmundo S. Piccio ordered, accordingly, the revision of the ballots contained in
boxes from Precinct No. 8. Hence, the present petition for certiorari against
Judge Piccio and candidate Colasito, which is the second one filed with the
Supreme Court by the sane petitioners. the first one filed in L-1852, dated
December 6, 1947, seeking to restrain Judge Piccio from enforcing the order of
November 26, 1947, commanding the opening of the ballot boxes of Precinct No. 8
of Tolosa.

“Attached to the record there are two telegrams from the clerk of the Court
of First Instance of Leyte giving information to the effect that the ballot
boxes were opened on December 31, 1947, and upon the revised ballots, it appears
that they support the contention of Colasito as to the true result of the
election. Petitioners allege that Colasito filed an election protest against
Trinchera in case No. $lk of the Court of First Instance of Leyte.

“Considering that respondent judge has jurisdiction to take cognisance of the
petition for mandamus that he did not.abuse his discretion in refusing
to dismiss the petition for mandamus was a proper remedy under the
facts alleged therein, which happen to be justified by the result of the
recounting of the ballots made by the court on December 31, 1947, and that the
remedy by election protest can be sesorted to only after a canvass and
proclamation has been made by the municipal board of canvassers upon the
authentic election returns of all the precincts of the municipality, the
aggrieved party being entitled to remedy against an illegal canvass or
proclamation or one based on one or more false election returns, petition
dismissed.”

The above resolution does not decide the questions of fact raised in the
protest as to counting and adjudication of votes in Precincts Nos. 3, 6, and 7
of Tolosa. Neither does it decide the question as to whether or not the election
of Colasito should be annulled and Trinchera should be declared elected to the
office of mayor of Tolosa, as prayed for in the protest.

The appealed order of dismissal of the protest is set aside and the lower
court is ordered to proceed with the protest on the merits with costs of this
appeal against appellee.

Moran, C. J., Ozaeta, paras, Pablo, Bengzon,
Briones, Tuason, and Montemayor, JJ., concur.