G.R. No. L-34253. October 29, 1971
LUZ BATIOCO AND VIRGILIO GEROLAGA, PETITIONERS, VS. THE HON. PEDRO JL. BAUTISTA, IN HIS CAPACITY AS EXECUTIVE JUDGE OF THE COURT OF FIRST INSTANCE OF PASAY CITY AND LORENZO STA…
TEEHANKEE, J.:
Original action for a writ of mandamus directing respondent
judge to order the docketing by respondent clerk of court of 193 verified
petitions for exclusion of more than 6, 000 allegedly fictitious voters in
Pasay City. The Court grants the
petition and orders that said petitions be forthwith heard and resolved before
election day, November 8, 1971.
214 verified exclusion petitions were concededly sought to be filed
with respondent clerk during office hours of October 19, 1971, the last of the
10-day period from October 9, 1971 (the date fixed by the Commission on
Elections under section 240 of the Election Code of 1971, Republic Act No.
6388, for registration of voters before the precinct boards of inspectors)
within which to file inclusion/exclusion petitions under section 118 of the new
Code.
The petitions were first presented for filing at 1:30 p. m. They were prepared and filed after a
house-to-house canvass conducted by the Pasay Citizens League for Good
Government and the Progresibong Kabataan ng Pasay, duly authorized,
according to the petitions, by the Comelec for the purpose of ferreting out
from the voters’ lists “fictitious or non-existing persons.” What
transpired thereafter, even going by the allegations of respondents’ answer,
was that the receiving clerk of respondent court refused to accept the
petitions for filing on the ground that they “were not accompanied by
proof of notice of service of the petitions to the parties, as required by
law.” When petitioners’ counsel brought the matter to the respondent
clerk’s attention, the latter “suggested to Atty. Dizon (petitioners’
counsel) that while there was still time, it would be to their own advantage to
attach the required proof of service of notice to the parties, as required by
law, otherwise, even if accepted for filing, the Court may dismiss the
petitions.”[1]
According to respondent clerk, “(B)elieving in the soundness
of this suggestions, Atty. Dizon agreed, left and returned at about 3:30 p. m. with
an affidavit which he claimed was to serve as
the proof of service for all the petitions numbering 214 separate petitions. Clerk of Court Sta. Ana opined that the
said affidavit did not conform to the substantial requirements of the election
law, and suggested to Atty. Dizon to prepare a separate affidavit for
each of the petitions for exclusion, to conform to the substantial requirements
of the Election Code, to which suggestion Atty. Dizon agreed.[2]
Thereafter, petitioners’ counsel returned at 4:07 p. m. with
affidavits of proof of service for each of the 214 petitions, which he
feverishly sorted and stapled to each of the petitions. Respondent clerk then directed his receiving
clerk to docket the petitions but only a total of 21 petitions could be
received and stamped as of 4:45 p. m. and 5:00 p. m. At 5:00 p.m., respondent clerk ordered the
docketing of the petitions stopped and the closing of his office, since
according to him, lawyers of the Nacionalista and Liberal parties enjoined him
not to receive any further petitions in violation of section, 139-a of the new
Code which enjoins that “(O)utside of the regular office hours, no
application for inclusion or exclusion of voters shall be received.”
Petitioners’ representations with respondent judge, as executive
judge of respondent court, (personally at the first hour of October 20, 1971
and formally in writing on October 22, 1971) to direct respondent clerk to
docket the remaining 193 petitions which had been left undocketed, met with no
success.
Hence, the filing of the present petition on October 23, 1971,
hearing of which was held on October 28, 1971, due to the urgency thereof.
The Court finds that the writ of mandamus should issue as prayed
for, by virtue of the following considerations:
1.
The 214 verified petitions were duly and timely
presented for filing to respondent clerk of court during the regular office
hours of October 19, 1971. Consequently,
it was the ministerial duty of respondent clerk of court to receive the
petitions and to have them duly docketed as of then, even though the physical
work of docketing the petitions and affixing the docket numbers thereon may
extend beyond the close of office hours.
The prohibition of the Code against receipt of
exclusion/inclusion petitions “outside of the regular office hours”[3]
was clearly inapplicable, for here, the petitions were duly presented for
receipt and filing during regular office hours, and it was merely the
physical work of docketing them – due to the great number of petitions – that
had to extend after office hours. To so
docket them is merely to comply with the clear intent and spirit of the cited
legal provision.[4]
2.
It was clearly officious on the part of
respondent clerk to suggest or require that petitioners’ counsel attach to the
214 petitions a separate affidavit of service of notice for each of the
petitions, by way of proof of notice as mentioned in section 137 of the new
Code[5],
as “otherwise, even if accepted for filing, the Court may dismiss the
petitions.”[6]
Prescinding from the fact that the verified petitions each carried in paragraph
5 thereof the equivalent of proof of notice (although not in ideally precise
and accurate terms),[7]
and therefore the separate individual affidavits of service of notice required
by respondent clerk of court might be deemed a surplusage, respondent clerk
could not likewise officiously arrogate unto himself the prerogative of
passing upon the sufficiency and validity of the proof of notice incorporated
in the petition. His was the ministerial
function, particularly in election cases, of receiving the petitions and
docketing the same, instead of raising the alleged defects in form or substance
which delayed and prevented the docketing during office hours of the petitions,
to the prejudice of the public interest involved. The judicial power to rule upon such alleged
defects of the petitions, specifically insufficiency of notice on the parties
concerned, is vested in respondent court, which is called upon to rule thereon
at the hearing, motu proprio or at the adverse party’s instance.
3.
Since respondent clerk of court failed to
discharge his ministerial duty of receiving and docketing the petitions, it
clearly devolved upon respondent judge as a ministerial function, upon his
attention having been duly called thereto, to order respondent clerk to docket
the petitions.
– –
– –
As things stand now, only 21 exclusion petitions were docketed,
leaving 193 petitions undocketed which could not be heard on October 25, 1971,
at 9 A.M. in accordance with the notice of hearing therein given. The said petitions should now be docketed and
raffled forthwith among the various branches of the Court of First Instance of
Pasay City and notice of hearing caused to be given expeditiously only by
personal delivery to the voters named as respondents in the petitions or by
leaving the notice with copy of the petition in the possession of a person of
sufficient discretion in the stated residence of the voters-respondents,[8]
in order that the petitions may be promptly heard and resolved before election
day, November 8, 1971, as ordained in the new Code.[9]
ACCORDINGLY, the petition for a writ of mandamus is
granted, as prayed for. In view of the
urgency of the petitions which have to be heard and resolved before the
November 8, 1971 elections, this decision is declared immediately
executory. Respondent judge is directed
forthwith (a) to order respondent clerk of court to enter in the docket book of
respondent court, as of October 19, 1971, the 193 undocketed exclusion
petitions that were presented on said date; and (b) to raffle the said
petitions for assignment to the various branches of the Court of First Instance
of Pasay City. All said branches of
respondent Court of First Instance of Pasay City are directed in accordance
with the preceding paragraph and the rules provided in section 139, R.A. No.
6388, particularly, paragraph (f) thereof,[10]
to promptly hear and resolve the said exclusion petitions respectively assigned
to them before election day, November 8, 1971.
SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
Fernando, Barredo, Villamor, and Makasiar,
JJ., concur.
[1]
Answer, par. 8; note in parenthesis supplied.
[2]
Answer, par. 9; emphasis supplied.
[3]
Sec. 139 (a), R.A. No. 6388.
[4] A
clearly analogous provision is that of sec. 170 of the new Code on voting
hours, which permits voting beyond the closing hour of 3 p. m. by “voters
present within thirty meters in front of the polling place who have not yet
cast their votes.”
[5]
Sec. 137 provides that “(T)he application shall be sworn to and
accompanied by proof of notice to a member of the board of inspectors, if the
same is duly constituted, or election registrar … and to the challenged
voter.”
[6]
Respondents’ Answer, par. 8.
[7]
Paragraph 5 of the uniform verified petitions asserts that “5. That copies of this Petition have been served
upon each Private Respondent by registered mail, by posting a copy of said petition
in a public place in the City at least ten (10) days prior to date of hearing
or leaving copies thereof to persons of sufficient discretion at the respective
stated addresses of respondents.”
[8]
Pursuant to sec. 139(b), R.A. No. 6388.
[9]
See sec. 139 (g), R.A. No. 6388, providing that “(T)he decision shall be
rendered within six hours after the hearing and within ten days from the date
of its filing or registration in court.”
[10]
“(f) The decision shall be based on the evidence presented. If the question is whether or not the voter
can read and write, such voter shall be personally examined before the court
and if the question is whether or not the voter is real or fictitious, his
non-appearance on the day set for hearing shall be prima facie evidence that
the registered voter is fictitious. In
no case shall a decision be rendered upon a stipulation of facts.” (sec.
139, R.A. No. 6388)