ELEUTERIO DE LEON, PROTESTANT AND APPELLANT, VS. NICANOR F. CRUZ, PROTESTEE AND APPELLEE.

In the general elections held on November 15, 1951, for the
office of municipal mayor of Paranaque, Rizal, Nicanor F. Cruz, herein
protestee-appellee, was certified by the municipal board of canvassers to have
obtained 8,161 votes, as against 5,669 votes obtained by Eleuterio de Leon,
herein protestant-appellant. Accordingly, on November 23, 1951, the appellee was
proclaimed as the elected municipal mayor with a plurality of 492 votes.

On December 6, 1951, the appellant filed a motion of protest in
the Court of First Instance of Rizal, impugning and contesting the appellee’s
election on the following grounds:

“(a) Multiple votings by various persons and/or substitution,
in the very act of voting’, of registered ‘flying’ voters, by persons other than
said registered ‘flying’ voters, who failed to appear at the respective
precincts to vote, probably due to fear that they might be detected, were
committed in Precincts Nos. 1, 1-A, 2, 3, 6, 6-A, 7, 8, 9, 13-A, 14, 15, 15-A,
17, 19, 20, 21, 21-A, 22, 26, 29, 30, 31 and 32 of said municipality;

“(b) In all the precincts mentioned in allegation 4 (a) hereof,
as well as in Precinct Nos. 16-A, 28, 35, 41, 44, 46 and 47, ballots cast in
favor of herein protestant were not read and counted in his favor hut were
instead credited in favor of protestee;

“(c) In Precinct No. 8 of said municipality, the election
return filed by the Board of Election Inspectors with the Municipal Treasurer of
Paranaque, Rizal, shows in words that the protestee obtained ‘one hundred four’
votes only, while the same return shows in figures that said protestee obtained
‘204’ votes, and the Municipal Board of Canvassers of Paranaque credited the
protestee with ‘204’ votes, instead of ‘104’ only, which is the correct number
of votes received by said protestee;

“(c-1) Moreover, said Precinct No. 8 was located in the house of
Cornelio Rivera, incumbent Vice-Mayor of Paranaque, Rizal, and protestee’s
campaign leader, in violation of Sec. 64 of the Revised Election Code, which
made possible the commission of the irregularity that the voting and the actual
counting of the ballots cast was made on the second floor thereof, and the Board
of Election Inspectors excluded the watchers of the protestant and other
Nacionalista candidates therefrom;

“(d) In Precincts Nos. 20, 21 and 21-A of the said
Municipality, blank ballots were allowed to be taken out of the voting precinct
by voters and they were later on brought inside the precinct by the succeeding
voters already filled with the names of candidates; votes cast in favor of the
protestant were read and counted in favor of the protestee; votes cast in favor
of protestee were re-read and counted again in favor of said protestee; and
watchers of Nacionalista candidates were not allowed inside said precincts to
enable them to perform the duties permitted them by law;

“(e) In Precinct Nos. 7, 8,. 20, 21, 21-A and 24, of Paranaque,
Rizal, watchers of the Liberal party candidates were allowed by the Board of
Election Inspectors to write and cast the votes for registered voters other than
said watchers;

“(f) In Precinct Nos. 22, 23, 24, and 41, ballots marked with a
cross ( + ) in the space for Mayor were credited in favor of the protestee on
the ground that the said mark stands for ‘Cruz’, when said ballots should be
declared spoiled for being marked;

“(g) In Precinct Nos. 7, 8, 20, 21, 21-A, 26, 29, 30, 31 and
32, many ballots written by one hand were credited in favor of the herein
protestee.”

The appellee filed an answer with a counter-protest and
counterclaim, to which the appellant filed a reply and answer. To enable the
court to examine and count the ballots in all the contested precincts, it
appointed commissioners who were directed to open the ballot boxes and separate
the ballots into the following groups:

“GROUP I: Ballots which are not contested and admitted by both
parties.

“GROUP II: Ballots which are contested by the protestant.

“GROUP III: Ballots which are contested by the protestee.

“GROUP IV: Ballots which are claimed to be null and void for
one reason or another by the protestant.

“GROUP V: Ballots which are claimed to be null and void for one
reason or another by the protestee.”

On January 14, 1952, the appellant filed an amended motion of
protest, the amendment consisting of the following:

“1. That the only change made in this Amended Motion of Protest
is the addition in par. (a) of the prayer of the figures ‘9’, ’46’ and ’47’,
corresponding to the elections” precincts bearing said numbers of Parafiaque,
Rizal;

“2. That in the original motion of protest, those figures were
inadvertently omitted, although as may be seen in original motion of protest,
Precinct No. 9 has been duly protested in the allegation in par. 4 (a), while
precincts Nos. 46 and 47 were likewise duly protested in the allegation in par.
4 (b).”

After the commissioners had revised the contents of the ballot
boxes in eight precincts contested by the appellant, the latter filed a motion
praying that the commissioners be ordered to desist from further revising the
contents of the ballot boxes in other twenty-one contested precincts, but that
they be ordered to proceed with the revision of the contents of the ballot boxes
in precincts Nos. 19, 20, 21 and 21-A. This motion was granted.

On February 13, 1952, the appellant filed a motion praying that
Mr. Edgar Bond be authorized to examine the fingerprints appearing in certain
registry lists, to compare them with the voters’ affidavits, and to take
photographs thereof if necessary. This motion was set by attorneys for appellant
for hearing three days from February 13, or February 16. On February 15 the
appellee filed an opposition and counter-motion to dismiss the protest, copy of
which was served on counsel for the appellant on the same date. On February 15
attorneys for the appellee filed an urgent motion, praying that the hearing of
appellant’s motion filed on February 13, be set for a definite date, preferably
February 18. On February 18, at 7:00 a.m., attorneys for the appellants filed an
urgent motion, praying that the appellee’s motion to dismiss be heard on
February 20, instead of on February 18. On the latter date, the court issued an
order dismissing the motion of protest filed by the appellant and confirming the
election of the appellee as the duly elected mayor of Paranaque, with costs
against the appellant. In said order the motion for postponement filed by
attorneys for the appellant was denied. His two motions for reconsideration
having been denied, the present appeal was interposed by the appellant.

The first point raised by the appellant is that the appellee’s
counter-motion to dismiss did not contain any notice of hearing and therefore
was a useless scrap of paper which should not be resolved by the lower court. It
appears, however, that said motion to dismiss was part and parcel of appellee’s
opposition to the appellant’s motion filed on February 13; and it was
accordingly not necessary for the appellee to set his opposition for a separate
hearing. Moreover, in the urgent motion filed by attorneys for the appellee on
February 15, it was prayed that the hearing of appellant’s motion of February
13, be held on February 18; and attorneys for the appellant must be held to have
known of the hearing on February 18, because they moved to postpone the same to
February 20.

The lower court denied appellant’s motion for postponement on
the ground that although Mr. Alberto Jamir, one of the attorneys for the
appellant, had to appear in another court, the appellant was represented by four
lawyers and anyone of them could represent him at the hearing held on February
18. The court acted properly, especially considering that an election contest
should be disposed of within a limited statutory period in the interest of all
concerned.

The opposition and counter-motion to dismiss filed by the
appellee on February 15, 1952, was premised on the allegation that the motion of
protest failed to state a claim upon which relief could be granted.
Specifically, it was pointed out that the motion of protest did not allege that
the frauds, irregularities and violations invoked by the appellant would in any
way alter the result of the appellee’s election, particularly because, in the
revision of the ballots, the appellant contested only a total of 426 votes, and
even if all these votes are counted for the appellant, the appellee would still
have a plurality of 66 votes. The trial court, in ruling upon the point stated
as follows:

“It appears, further, that in compliance with the order of the
Court dated January 14, 1952, the commissioners and watchers appointed by the
Court commenced the revision of the ballots in all the contested, precincts;
that in the course of such revision, the protestant filed an urgent motion dated
January 30, 1952, in which motion the said protestant asked the Court to order
the commissioners and watchers appointed in this case to desist from further
revising of the contents of the ballot boxes m Precincts Nos. 7, 9, 14, 15,
15-A, 16-A, 17, 22, 23, 24, 26, 28, 29, 30, 31, 32, 35, 41, 44, 46, and 47 of
the municipality of Paranaque, Rizal, as he was waiving his right to ask for the
opening of the ballot boxes aforesaid for the reason alleged in said motion;
that on February 1, 1952, the Court granted the said motion, and the Court order
the said commissioners and watchers to open and revise only the ballots in the
ballot boxes of Precinct Nos. 19, 20, 21 and 21-A, of Paranaque, Rizal, as
prayed for by the protestant in the said motion of January 30, 1952; and that
after all the 13 questioned ballot boxes, as stated in the daily reports of the
commissioners, were opened and revised, it appear that a total of 426 votes have
been challenged by the protestant.

“Indeed, there is no showing in the motion of protest that the
protestant is entitled to the relief he prayed for. He failed to aver in his
basic pleading that his motion of protest would change the result of the
election for mayorship of Paranaque, Rizal. However, the protestant was
nevertheless given an opportunity to examine the ballot boxes in the precincts
contested. Taking advantage of this, he was only able to challenge 426 votes.

“Considering that the protestee was proclaimed with a plurality
of 492 votes, some 66 votes more than the votes allegedly contested by the
protestant, it is the opinion of the court that any further proceedings of this
case will no longer be necessary, as the questions that may and could only be
raised and discussed would be academic or moot question.” (pp. 19-21, Appellee’s
brief.)

The appellant contends that, inasmuch as the jurisdictional
facts required by section 174 of the Revised Election Code are alleged in the
motion of protest, the same cannot be dismissed for lack of a cause of action,
even if there is no allegation that the irregularities complained of would
affect the result of the election. The appellant has cited the case of Gallares
vs. Casenas, 48 Phil., 362, in support of the proposition that the lower court,
instead of dismissing the motion of protest, should have allowed the appellant
to amend it by alleging that the result would be changed by the irregularities
complained of, assuming that such allegation is necessary. However, as correctly
stated by the appellee, in the case cited the protest contained an allegation
“that had not said irregularities or violation of the law alleged in the
preceding paragraph been committed, the result of the elections would have been
different, and the contestant would have been victorious with a large majority
of votes over the contestee.” And this Court merely allowed the contestant to
specify the number of votes which would result in favor of the protestant after
the judicial counting.

In the present case there is no allegation whatsoever that the
irregularities mentioned in the motion of protest would, if corrected, ever
result in the election of the appellant. The dismissal by the lower court of the
motion of protest becomes the more imperative, in view of the fact that the
appellant not only waived the opening of the ballot boxes in many contested
precincts but, in connection with the ballots revised, contested only a total of
426 votes, or 66 votes short of the plurality adjudicated by the municipal board
of canvassers to the appellee.

The appellant, however, relies upon the following manifestation
of his counsel: “We wish to make it of record that all admission as to the
genuineness or authenticity of the ballots which may be made during the revision
of the ballots by the commissioners, now or in the future, pursuant to the order
of the court dated January 14, 1952, shall be without prejudice to proving in
due time that such ballots were written by one hand, or by a person or persons
other than the duly registered voter, according to the allegations of our motion
of protest. In other words, all such allegations (admissions) shall be confined
only to the fact that such ballots appear regular on their face and that they
are legibly written, but our right to prove that they are not valid and should
not be counted because they were written by a person or persons other than the
duly registered voters is hereby expressly reserved. It is claimed that, under
this reservation, the appellant was free to contest the validity of all the
uncontested ballots, and thereby ‘to prove that such uncontested ballots were
written by one hand or by a person or persons other than the duly registered
voters, it being alleged that a handwriting expert may testify to the fact that
the fingerprints and signatures appearing in the voters’ affidavits are
different from the fingerprints and signatures in the registry lists. In the
first place, this contention would nullify the purpose of the expensive
formality of separating the contested ballots from the uncontested ballots.
Indeed, the commissioners were directed by the lower court to group, in addition
to other contested ballots, those ballots claimed to be null and void for one
reason or another. In the second place, assuming that the appellant may prove
discrepancies in the fingerprints and signatures in the voters’ affidavits and
in the registry lists, that circumstance alone will not show that the illegal
voters prepared all or any of the uncontested ballots in favor of the
appellee.

It is further argued that the appellant had waived the opening
of the ballot boxes in many contested precincts, with the reservation to
continue his motion of protest with regards to all other grounds specified
therein, and that, under said reservation, the appellant may show at the trial
“that the frauds committed by the protestee and/or his leaders and henchmen were
so flagrant and their influence so diffusive that it is impossible to separate
the good votes from the bad in order to determine the true result of the
election, for which reason the entire vote therein should be avoided and
rejected.” The motion of protest, however, does not contain the proper
allegation to justify the presentation of the intended evidence.

Wherefore, the appealed order will be affirmed, and it is so
ordered with costs against the protestant-appellant.

Pablo, Bengzon, Padilla, Tuason, Montemayor, Bautista Angelo, and
Labrador, JJ., concur.