JOSE T. GONZALES, PETITIONER, VS. THE COURT OF APPEALS, AND JAIME M. FLORES, RESPONDENTS.

The
petitioner, Jose T. Gonzales, applied to this Court for review on
certiorari of the order of the Court of Appeals giving due course to
the appeal taken thereto by respondent Jaime M. Flores from the
decision of the Court of First Instance of Agusan in its Election Case
No. 15.

It appears that Jose T. Gonzales and Jaime M. Flores
were both candidates, with two others, for the position of vice-mayor
of the City of Butuan in the November 10, 1959 elections. After votes
were canvassed, Flores was proclaimed elected by a plurality of 222
votes over Gonzales. Within the statutory period, Gonzales filed with
the Court of First Instance of Agusan an election protest contesting
Flores’ proclamation, alleging irregularity in the conduct of the
election. After hearing, the court rendered judgment, as follows:

“Wherefore,
the Court hereby declares the protestant Jose T. Gonzales duly elected
vice-mayor of the City of Butuan in the election held in November 10,
1959, with costs and incidental expenses against the protestee. Let a
copy of this decision be furnished the Commission on Elections.”

From the decision, Flores appealed. The appellant’s amended notice of appeal reads:

“Please
be advised that the protestee herein gives amended notice of his
intention to appeal to the Court of Appeals from the judgment entered
in the above-entitled case on December 31, 1960, of which the protestee
was notified on January 13, 1961, on the questions of facts and of law,
except on the findings on tamperng of ballots.” (Italics supplied)

Gonzales
filed with the Court of Appeals a motion to dismiss the appeal on the
ground that section 178 of the Revised Election Code does not confer
the right to appeal from a judgment of the Court of First Instance upon
the parties to an election contest for the positions of vice-mayor and
municipal councilor. Acting on this motion and on the opposition of
protestee Flores, the appellate court promulgated a minute resolution
denying the plea of dismissal. Gonzales resorted to this Court.

There
is merit in this petition. The rule is that an appeal to a higher
court, being merely a statutory right and not ordinarily a necessary
part of due process, may only be taken when the law so provides
(Aguilar and Casapao vs. Navarro, 55 Phil. 898; Duarte vs. Dade, 32 Phil. 36). In this case, the law applicable is section 178 of the Revised Election Code that reads:

“Appeal
from the decision in election contests—From any final decision rendered
by the Court of First Instance in protests against the eligibility or
the election of provincial governors, members of the provincial board,
city councilors, and mayors, the aggrieved party may appeal to the
Court of Appeals or to the Supreme Court, as the case may be, within
five days after being notified of the decision, for its revision,
correction, annulment or confirmation, and the appeal shall proceed as
a criminal case. Such appeal shall be decided within three months after
the filing of the case in the office of the clerk of Court of which the
appeal has been taken.’ (Italics supplied)

Construing
the foregoing provisions, this Court, in the case of Dominador Lucena,
et al. vs. Hon. Bienvenido Tan, et al., (84 Phil., 548; 47 Off. Gaz.,
[3] 1121) has held:

“In Tajanlañgit vs.
Pefiaranda (1917), 37 Phil. 155, we declared that, in view of the
provisions of the Administrative Code, decisions of the courts of first
instance in municipal election contests were final and not appealable.
The view was premised on the fact that the law directed that all
election contests shall be filed with the corresponding court of first
instance, which ‘shall have exclusive and final jurisdiction except as
hereinafter provided’ * * * and the further fact that while expressly
providing for an appeal in contests for provincial governors, the law
contained no provision permitting an appeal in contests involving
municipal officers.

*            *            *            *            *            *            *

“The
present Election Code, unlike the law at the time the above-mentioned
cases were considered, does not contain a provision giving ‘exclusive
and final jurisdiction to courts of first instance.’ But the difference
should be immaterial, because this Court only mentioned such final
jurisdiction as one of the reasons for holding that no appeal existed. There
is the other reason which, is still good: the law does not provide for
appeal in contests for vice-mayor and councilor, although it expressly
allows appeals in contests for other positions.

*            *            *            *            *            *            *

“We
must, therefore, hold that no appeal to this Court lies from a decision
of the court of first instance in contests for vice-mayor or municipal
councilor.” (Italics supplied).

The
ruling was reiterated in Evangelista vs. Castillo, 87 Phil., 572; 48
Off. Gaz., [2] 633; (see also Calano vs. Cruz, 94 Phil., 230; 50 Off.
Gaz., [2] 610).

Respondent Flores argues, however, that since
section 178 of Republic Act 180, as amended, expressly allows the
taking of an appeal in protests against the election of city
councilors, it is apparent that the legislature did not intend to deny
the same remedy when the contest involves the position of a higher
official, like the city vice-mayor. But the question is not whether
Congress intended to deprive the parties in the latter case from taking
an appeal, but whether or not it conferred that right. The very
argument of the respondent to the effect that when Republic Act No. 180
was enacted, the position of city vice-mayor was either non-existing or
appointive, shows that the now evident hiatus in the law was not the
result of a mere legislative oversight at the time the Election Code
was passed, but a legislative inaction from the city vice-mayors became
elective. The defect, it is clear, can be cured not by judicial
pronouncement but only by legislative enactment.

Neither is
there merit in the contention that because the city vice-mayors preside
over the city councils and perform the same functions as the city
councilors, they should be considered embraced within the term “city
councilors” under section 178. It should be noted that besides his
functions in the city council, the city vice-mayor has other duties and
prerogatives not imposed on, or enjoyed by, the city councilors (see
Republic Act No. 2259).

This Court has noted the possibility
of a direct appeal to this Supreme Court even in election protests for
the offices of vice-mayor and city councilor if the only issues
involved are questions of law (Sec. 2, Art. VIII, Constitution of the
Philippines; Marquez vs. Prodigalidad, 83 Phil., 813; 46 Off. Gaz.,
Supp., No. 11, 264; Calano vs. Cruz, supra. In this
contest, however, it is undisputed that the issues are mixed questions
of law and fact; indeed, respondent-appellant has so stated in his
amended notice of appeal. Furthermore, if the findings of fact of the
Court of First Instance of Agusan regarding the existence of fraud and
irregularity in the conduct of the elections in sitio
Maguinda of the city are correct, and we have no appellate power to
review said findings, then we should concede that there was legal
propriety in the annulment decreed by the trial court of the votes cast
therein (see 18 Am. Jur. 333- 336). Recourse to this Court, under the circumstances, would have been futile.

Finally,
respondent Flores brings up the procedural question whether or not
certiorari lies, considering that the petitioner failed to file a
motion for reconsideration with the Court of Appeals from the denial of
his motion to dismiss. In Pajo, etc., et al. vs. Ago, et al., 108
Phil., 905, we held that it is only when questions are raised for the
first time before the high court in a certiorari case that the writ
shall not issute, unless the lower court had first been given an
opportunity to pass upon the same. The records of this petition clearly
disclose that the issues herein raised have already been presented to
and passed upon by the court a quo. Moreover, when the
respondent court entertained the appeal of Flores, it did so beyond its
appellate jurisdiction, since the right of appeal did not exist by
statutory authority, and not even the express agreement of the parties
could have cured that jurisdictional defect (see Moran, Comments on the
Rules of Court, Vol. I, 1957 Ed., pp. Ixii-lxiii).

Wherefore,
the resolution of the Court of Appeals of March 17, 1961, denying
petitioner’s motion to dismiss the appeal in CA-G.R. No. 28966-R, is
hereby set aside, and another one entered dismissing said appeal. Costs
against respondent Jaime M. Flores.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Dizon, and De Leon, JJ., concur.