JOSE C. AQUINO, ET AL., PETITIONERS, VS. COMMISSION ON ELECTIONS, ET AL., RESPONDENTS.

On December 12, 1967, petitioners Jose C. Aquino,
Congressman of the lone Congressional District of the province of Agusan and the Chairman of the Nacionalista
Party in said province, and Uldarico A. Mosquito and
Gabriel R. Banaag, the last to being members of the
City Council of Butuan City, filed a petition before
this Court for certiorari with preliminary injunction, to review the resolution
of the Commission on Elect­ions dated November 30, 1957, which approved the com­position
of the City Board of Canvassers of Butuan City to
canvass the votes cast in said city in the elections held on November 14,
1967.  Made respondents in the petition
are the Commission on Elections (hereinafter to as Comelec),
the City Board of Canvassers; Butuan City and seven
persons who were appointed as substitute members in said City Board of
Canvassers, Namely: Laudemer Kahulugan,
said City Board of Canvassers, Javelosa, Mariano
Rosales, Lino Oconer,
Antonio Gonzales, Ricardo Castillo and Julian Reyes.

The pertinent allegations of the petition, in substance, are as
follows:

That in the elections of November 14, 1957, the incumbent City
Mayor, City Vice-Mayor, and the ten City Councilors of Butuan
City, were candidates either for reelection to the same offices held by them,
or other elective offices, so that they were thereby disqualified to sit as
members of the City Board of Canvassers to canvass the result of the elections
in Butuan City; that for the purpose of filling the
twelve vacancies in the City Board of Canvassers, the leaders of the Nacionalista Party, the Liberal Party and the splinter
political group known as the Sanchez-Plaza NP-LP Coalition made recommendations
to the Comelec, and the matter was the subject of
hearings before the Comelec; that on November 30,
1967, the Comelec issued a resolution constituting
the members of the City Board of Canvassers of Butuan
as follows:

1. City Fiscal Nestorio Placer – – – – –
– – – – – – – – Chairman

2. City Engineer Proceso Gonzales

vice City Mayor – – – – –
– – – – – – – – – – – – – – -Member

3. City health
Officer Gaudioso

Manlunas
vice City Vice-Mayor – – – – – – – – -Member

4. Div. Supt. Pedro
Calo vice

Councilor Eduardo Mercado
– – – – – – – – – – Member

5. Register of
Deeds Arturo Ri–

caforte vice Councilor Jesus

Clarin
– – – – – – – – – – – – – – – – – – – – – – – – – -Member

6. Clerk of Court
Eduardo Maes–

trado vice Councilor Eulogio

Garcia – – – – – – – – –
– – – – – – – – – – – – – – – – Member

7. Chief of Police Laudemer Ka-

hulugan vice Councilor Ulda–

rico
Mosquito – – – – – – – – – – – – – – – – – – – – Member

8. Board Secretary Silvino Jave–

losa vice Councilor Godiardo

Guillen
– – – – – – – – – – – – – – – – – – – – – – – – -Member

9. Chief, Fire
Dept. Mariano Ro-

sales
vice Councilor E.

Esguerra
– – – – – – – – – – – – – – – – – – – – – – -Member

10. Chief Deputy
Assessor

Lino
Ocener vice Councilor

Crisotelo
Montalban – – – – – – – – – – – – – – – Member

11. Asst.
City Treasurer Antonio

Gonzalez vice
Councilor

Felimon
Busa – – – – – – – – – – – – – – – – – – – Member

12. Special Counsel
Ricardo Cas–

tillo vice Councilor Gabriel

Banaag
– – – – – – – – – – – – – – – – – – – – – – – Member

13. Engineer Julian
Reyes vice

Councilor David Rosales –
– – – – – – – – – -Member

14. City Auditor – – – – – – – – – – – – – – – – – – – – –
Secretary

The petition further alleges that pursuant to the above-mentioned
resolution of the Comelec of November 30, 1967, the Board of Canvassers as
thus constituted commenced to canvass the votes cast for the offices of city
Mayor, City Vice-Mayor, and City Councilors of Butuan
City preparatory to the proclamation of the candidates elected for the said
elective city offices.

The petitioners question in their petition the legality of the
appointment of the Comelec of the Chief of Police of Butuan City, the Council Secretary, the Chief of the Fire
Department, the Chief Deputy Assessor, the Assistant City Treasurer, the Special
Counsel and an Engineer in the City Engineer’s Office, as substitute members of
the City Board of Canvassers to take the place of seven City Councilors, upon
the ground that those seven substitutes are not persons or officials who are
referred to in Section 159 of the Revised Election Code as the ones who may be
appointed as substitute members of the city board of canvassers in the event of
the absence or in­capacity of any member of a city board of canvassers.  In their petition the petitioners contend
that the seven substitutes should be persons appointed by the President of the
Philippines, not by the Comelec, pursuant to the
provisions of Section 28 of the Revised Election Code, and so because seven of
the thirteen members of the City Board of Canvassers of Butuan
City are not legally appointed the said City Board of Canvassers is illegally
constituted and whatever action that the Board would take regarding the canvass
of the votes cast in Butuan City in the elections of
November 14, 1967 and the proclamation of whoever are considered winning
candidates would be illegal and invalid.

Petitioners pray that upon filing of a bond as fixed by this
Court a writ of preliminary injunction or a temporary restraining order issue
against:  (a) respond­ent Comelec enjoining it from implementing or enforcing its
questioned resolution of November 30, 1967; (b) the seven private respondents
herein who are alleged to be illegally appointed as substitute members of the
City Board of Canvassers, enjoining them from sitting as mem­bers of the City
Board of Canvassers of Butuan City and from
participating in its functions relative to the can­vass of votes and
proclamation of winning candidates, and (c) the respondent Board of Canvassers
enjoining it from continuing with the canvass of votes cast for the elective
city offices of Butuan City and from making any
proclamation of any winning candidate. 
The petition further prays that after due hearing the writ of
preliminary injunction or the temporary restraining order be made permanent;
that the resolution of November 30, 1967 be declared null and void as regards
the appointment of the seven private respondents as substitute members of the
City Board of Canvassers is concerned; that the res­pondent Board of Canvassers
as constituted pursuant to the said resolution of November 30, 1967 be declared
as illegally constituted; and that in the event that before the said Board had
been restrained it had already made a proclamation of the winning candidates
that the proclamation be set aside.

This Court finds the petition not meritorious.

The city board of canvassers is an entity that is entirely
different and distinct from the city board or city council of a chartered
city.  Similarly, a provincial board of
canvassers, or a municipal board of canvassers, is an entity entirely different
and distinct from the provincial board of a province, or the municipal council
of a municipality, as the case may be. 
While members of a city board (or city council), or a provin­cial board
or of a municipal council, are members also of a city board of canvassers, or
provincial board of canvassers, or of a municipal board of canvassers, as the
case may be, they do not act in the board of canvassers in the capacity of city
councilmen, or in the capacity of a member of the provincial board, or in the
capacity of a member of a municipal council, but as election officials
to perform functions specifically provided by law.  The board of canvassers exists for a specific
function – that is, to canvass the results of the election as shown in the
election returns and to proclaim the winning candidates.  Once this specific function had been performed
the existence of the board of canvassers is ended and terminated.^[1]

The Constitution of the Philippines, in its Article X, Section 2,
provides that the Comelec not only shall have
exclusive charge of the enforcement and ad­ministration of all law relative to
the conduct of elections and shall exercise all other functions which may be
conferred upon it by law, but also the power to appoint election inspectors and
other election officials. 
It cannot be denied that members of the board of canvassers are election
officials.  It follows that when there is
a vacancy in the membership of the board of canvassers the only
authority empowered to appoint a member to fill the vacancy is the Comelec.  This con­stitutional
provision is precisely implemented by Sections 159 and 167 of the Revised
Election Code which pro­vide that in case of absence or incapacity of any mem­ber
of the provincial, city, or municipal, board of can­vassers, the Comelec may appoint the substitutes of those who are absent
or incapacitated.  Under the provisions
of the Revised Election Code no authority other than the Comelec
is empowered to appoint substitute members in the boards of canvassers.

We are of the considered view, therefore, that in case of
incapacity of the members of the provincial board or of the city board (or the
city council) of a chartered city to act as members of the provincial board of
canvassers or city board of canvassers, as the case may be, the Comelec has the power and authority to appoint substitutes
for the incapacitated members.  The Comelec must appoint as substitutes the officials
specifically mentioned in Section 159 of the Revised Election Code, and if more
substitutes are needed after those of­ficials have been appointed, the Comelec may appoint other officials of the province or city
until the pro­vincial board of canvassers or the city board of can­vassers, as
the case may be, had been fully constituted.

Section 158 of the Revised Election Code provides for the
composition of the provincial board of canvassers or the city board of
canvassers.  Section 159 provides for the
appointment of substitute members of the provincial board of canvassers or the
city board of can­vassers in case of absence or incapacity of the members
thereof.  It is clear under Section 159
that it is the Comelec alone that can appoint the
substitutes of the absent or incapacitated members of the board.  While it is true that under Section 159 there
are only six offi­cials named therein, namely, the Superintendent of Schools,
the District Engineer, the District Health Officer, the Register of Deeds, the
Clerk of Court of First Instance and the Municipal Judge of the provincial capital
– and their counterpart officials in the chartered cities – who may be
appointed as substitute members in the board of canvassers of the province or
the city, as the case may be, it does not follow that the Comelec
cannot appoint other officials in addition to those men­tioned in said section
in case there are more members of the board of canvassers that are to be
substituted.

Section 158 provides that the provincial board of canvassers
shall be composed of the provincial governor, the members of the provincial
board, the provincial treasurer, the provincial auditor and the provincial fis­cal.  This section of the Revised Election Code was
enact­ed at the time when the provincial board was composed of the governor and
only two members, such that with the addition of the provincial treasurer, the
provincial auditor and the provincial fiscal the provincial board of canvassers
would be composed of six members.^[2]
That is why in Section 159 there are named only six officials who may be
appointed as substitutes in case of absence or incapacity of members of the
provincial board of canvassers – namely, the superintendent of schools, the
district engineer, the district health officer, the regis­ter of deeds, the
clerk of court of first instance, and the municipal judge of the provincial
capital.^[3]
But under Republic Act 2264, enacted on June 19, 1959, the provincial board in
the first, second and third class provinces is now composed of the governor,
the vice-governor, and three members; and in the fourth, fifth, sixth and
seventh class provinces, the provincial board is composed of the governor, the
vice-governor, and two members.^[4]
It results that, as provided in Section 158 of the Revised Election Code, with
the addition of the provincial treasurer, the provincial auditor and the pro­vincial
fiscal, the provincial board of canvassers is now composed of seven or eight
members, as the case may be, depending on the class of the province.  Whereas, the provincial board of canvassers
is now composed of at least seven members, Section 159 of the Revised Election
Code names only six officials who may be appointed by the Comelec
as substitutes in case of absence or incapacity for any cause of the members of
the provincial board of canvassers.  So,
in case of the absence or incapacity of all the members of the
provincial board of canvassers as constituted under Section 158 there are not
enough sub­stitutes to replace them if only the six officials named in Section
159 are to be appointed by the Comelec.  This is a situation which may be considered
as a gap in the law.  This gap must be
filled by an interpretation of the Constitution and the election law.  We have adverted to that the members of the
board of canvassers are elect­ion officials and under the Constitution it is
the Come­lec that has the power to appoint election
officials.  It follows, therefore, that
in case of vacancies in the provincial board of canvassers the Comelec must have to fill those vacancies, and if the law
has not provided for a sufficient number of specific officials or persons that
may be appointed to fill the vacancies We believe that the law must be so
construed as to grant the Come­lec the power to appoint
other ideal persons to fill the vacancies. 
Inasmuch as Section 159 names the officials in the province that may be
appointed to fill the vacancies, the legislative intent is clear that the per­sons
that should be appointed by the Comelec to fill the vacancies,
or as substitute members, in the provincial board of canvassers must come from
among the officials in the province.  In
other words, if vacancies exist in the provincial board of canvassers the Comelec must fill the vacancies by appointing the officials
named in Section 159, and if after appointing all those officials more
vacancies still exist, or if any, or all, of those officials is/are not
available, the Comelec may appoint other official or
officials in the province.

This construction of the law as regards the ap­pointment of
substitutes, or in the filling of vacancies, in the provincial board of
canvassers must also apply in the appointment of substitutes, or in the fill­ing
of vacancies, in the city board of canvassers. 
Sec­tion 158 provides that in Manila
and other chartered cities the city board of canvassers shall be composed of
the mayor, the municipal board or city council, and the city fiscal.  On the other hand, Section 159 pro­vides that
in case of absence or incapacity of the mem­bers of the city board of
canvassers the Comelec may ap­point officers of the
city corresponding to those of­ficers of the province who are named as the ones
to be appointed as substitutes.  Those
corresponding officials are the city superintendent of schools, the city engi­neer,
the city health officer, the city register of deeds, the clerk of the city
court and the city judge.

We have examined the laws creating the chartered cities in the Philippines,
and We find that the minimum number of city councilors
in the different cities is six.  In most
cities there are eight city councilors, in some, cities there are ten city
councilors.  In the City of Ma­nila,
there are twenty.  In Butuan City
there are ten.  Every city has a mayor
and a vice-mayor.  It results that
pursuant to Section 158 of the Revised Election Code the minimum membership of
the city board of canvassers in the chartered cities is nine – the city mayor,
city vice-mayor, the six city councilors and the city fiscal.  In some cities there are eleven members of
the city board of canvassers, in others there are thirteen members, depend­ing
on the number of city councilors composing the city board or city council.  In Manila,
there are twenty-three members – the city mayor, the city vice-mayor, twenty
city councilors and the city fiscal.  In
the particular case of Butuan
City, the city board of canvassers
is composed of thirteen members – the city mayor, city vice-mayor, ten city
councilors and the city fiscal.

We, therefore, have the situation that whereas the board of
canvassers in the chartered cities are composed of at least nine members,
pursuant to the provisions of Section 158 of the Revised Election Code, in
Section 159 of the same Code only six officials are named as the ones who may
be appointed by the Comelec as substitutes in the
event of absence or incapacity for any cause of any member of the city board of
canvassers.  And so, in the event that
there are seven or more, or all, members of the city board of canvassers who
are absent or incapacitated to act in said board, the law has not pro­vided for
a sufficient number of officials who may be appointed as substitutes to fill
the vacancies in the city board of canvassers. 
Here again, as We have point­ed out in the case
of the provincial board of canvassers, is a gap in the law which must be filled
by an interpre­tation of the Constitution and the law.  As We have ad­verted to in a similar
situation that may obtain in the case of the provincial board of canvassers,
the vacan­cies in the city board of canvassers must be filled by the Comelec by appointing as substitutes, first the of­ficials
referred to (for the chartered cities) in Sec­tion 159 of the Revised Election
Code, and if more va­cancies exist after appointing those officials, or if any
or all of those officials is/are not available, the Comelec
may appoint other official or officials in the city.

The petitioners contend that after the officials named in Section
159 of the Revised Election Code had been appointed as substitutes, and more
substitutes are needed, the additional substitutes should be appointed by the
President of the Philippines
pursuant to Section 28 of the Revised Election Code.  This contention has no merit.

Section 28 provides as follows:

“Disqualification to act on provincial
boards and municipal councils. 
– Any member of a provincial board or of a municipal council who is a
candidate for office in any election, shall be incompetent to act on said body
in the performance of the duties thereof relative to said election and if for
said reason, the number of members should be unduly depleted, the Presi­dent,
if it is provincial or city office and the governor if it is a municipal
office, shall appoint any disinterested voter of the province, municipality or
city con­cerned belonging to the political party of the incompetent member to
act in his place on such matters.”

The terms “province or municipality”, “municipal
council”, “provincial officers or municipal officers”, as used
in the Revised Election Code, shall be under stood, in chartered cities, to
refer to the city, the city board or city council, and city officers, respect­ively;
and “unless the context shows a different mean­ing, the duties of the
provincial, board, the provincial governor, and the provincial treasurer
relative to elect­ions shall be performed in said cities by their municipal
(city) board, mayor and treasurer, respectively.”^[5]

This Court is of the considered view that Section 28 of the
Revised Election Code is now obsolete. 
What is contemplated in said section is the replacement of members of
the provincial board, or of the municipal (or city) council, who are candidates
(for reelection) in any election and who are disqualified to act on the
provincial board and municipal or city council in the performance of the
duties thereof relative to said election. 
The appointment by the President, or by the governor as the case may be,
mentioned in Section 28, refers to persons who will replace the members of the
municipal (or city) councils, or of the provincial boards, who are incompetent
or disqualified – because of their being candidates  to act as such members of the provincial
board or of the municipal (or city) council in the performance by said
provincial board or municipal (or city) council – as a body – of its duties
relative to the election.  As We have
adverted to, the provincial board, or the municipal (or city) council, is an
entity entirely distinct and different from the provincial board of canvassers
or the municipal (or city) board of canvassers, as the case may be.

Under the provisions of the old Election Code (Commonwealth Act
357)^[6]
the power to fix the limits of election precincts in the municipality or city
and to designate polling places within the precincts was lodged with the
municipal council or city council; and the power to appoint election inspectors
and poll clerks was lodged with the presiding officer of the municipal or city
council.  The provincial board exercised
powers over the actuations of the municipal council as provided by law.  The old Election Code was repealed by
Republic Act 180 (Revised Election Code), which was passed by Congress on June 21, 1947.  Under the original provisions of Republic Act
180, the power to fix the limits of election precincts and to designate the
polling places was still lodged with the municipal or city council, although
the power to appoint election inspectors and poll clerks which formerly was
lodged with the pre­siding officer of the municipal or city council was
transferred to the Comelec.  But on March 28, 1951, Republic Act 599 was
enacted, amending Republic Act 180,^[7]
and pursuant to this amendatory act the powers to fix the limits of election
precincts and to designate the polling places which was formerly lodged with
the municipal or city coun­cil was transferred to the Comelec.  It results, that since the enactment of
Republic Act 599 on March 28, 1951,
the municipal or city council, as a body, no longer has any more duties to
perform relative to elections.  Likewise,
under the Revised Election Code, as amended, the provincial board, as a body,
has no more duties to perform relative to elections.

Under the old election laws, which imposed duties upon the
municipal or city council relative to elections, it was deemed proper that the
members of the municipal council, or of the city board or city council, or of
the provincial board, who were candidates (for reelection), be considered
incompetent to oat in said body in the per­formance of the duties thereof
relative to the election in order to avoid such actuations on their part as
would favor their own personal political interests or the political interests
of their party.  Hence
the necessity of appointing persons to take the places of those who were
considered incompetent in the event that the mem­bership of the body would be
unduly depleted by the elimination of the incompetents.  The power to appoint the substitutes was
thereby lodged with the President if it is a provincial or city office, and
with the governor of it is a municipal office. 
But when the municipal or city councils have been relieved of duties
relative to elections, We believe that Section 28 of
the Revised Election Code serves no more purpose.

Indeed, the appointment of substitutes in the municipal or city
council, or provincial board, by the go­vernor or the President, as the case
may be, under Section 28 of the Revised Election Code could not have been
intended to refer to substitutes the board of canvassers, because it is in
Sections 159 and 167 of the Code where it is specifically provided how
substitutes in the provincial, city, or municipal, board of canvassers, should
be made – that is, that the appointment of the substitutes must be made by the Comelec.  Section 28
of the Revised Election Code may be considered as a proviso of general
character in the Revised Election Code, while Sections 159 and 167 are provisos
of specific character.  It is the
accepted rule of statutory construction that a specific proviso of the statute
prevails over a general proviso.  It is
also the rule that when there is a con­flict between two clauses or sections of
the same statute, effect must be given to the last in the order of position the
later’ overriding the earlier.  (Black, lnterpretation of Laws, Sections
102 and 103, Handbook Series.)

In support of their stand that when all the officers mentioned in
Section 159 of the Revised Election Code had been named as substitutes by the Comelec, and there is need of more substitutes to fill the
existing vacancies in the board of canvassers, the President is the one to
appoint the additional substitutes pursuant to Section 28 of the Revised
Election Code, the petitioners invoke the decision in the case of Torres v. Ribo, 81 Phil., 44, wherein this Court stated that
“net even the Commission on Elections may lawfully appoint (to their
provincial board of canvassers) any person or officer outside of those
mentioned” (in Section 159).^[8]

The decision in the Torres case has no application to the case at
bar.  The facts in the Torres case are:
In the general elections held on November
11, 1947, the incumbent governor Mamerto
S. Ribo and the two members of the provincial board
of Leyte were candidates and
so they were disqualified to sit as members of the pro­vincial board of
canvassers.  Pursuant to Section 159 of
the Revised Election Code the Comelec, in a telegram,
received by the provincial treasurer of Leyte
on Novem­ber 21, 1947,
appointed the division superintendent of schools, the district engineer, and
the district health officer to replace the three disqualified members.  It so happened that on November 21, 1947, the division superintendent
of schools and the district engineer were on the west coast of the province and
did not return to Tacloban until November 24.  On November 22, Provincial Treasurer F.
Martinez as chairman, Provincial Fiscal Gregorio Abogado,
Vicente Tizon, who was assistant civil engineer in
the district engineer’s office, Eva­risto Pascual, who was chief clerk in the office of the division
superintendent of schools, and W. Enage, who was
acting district health officer, met as the provincial board of canvassers and
canvassed the votes for provincial governor and other officers, and proclaimed Mamerto Riboas
governor-elect.  Vicente Tizon and Eva­risto Pascual sat in the board of canvassers representing the
district engineer and the division superintendent of schools,
respectively.  The legality of the pro­clamation
of Ribo as governor-elect, by the board of canvassers
as thus constituted, on November 22, 1947, was questioned upon the ground that
the board was not legally constituted because of the presence in said board of
the assistant civil engineer in representation of the district engineer, and of
the chief clerk in the office of the superintendent of schools in
representation of the latter official. 
This Court held that the presence in the board of canvassers of the
assistant civil engineer and the chief clerk was not authorized by law, because
they could not represent in the board the chief of their respective office who
is the official specifically named in Section 159 of the Revised Election Code
to be appointed as a substitute member in the board of canvassers – the
membership in said board be­ing one that cannot be delegated.  And so this Court ruled that because, of the
five officials who consti­tuted themselves as the board of canvassers (the pro­vincial
editor was not present and he was not substi­tuted), only three were qualified
to sit as members of the board – namely, the provincial treasurer, the provincial
fiscal and the acting district health officer – and under Section 158 of the
Revised Election Code the provincial board of canvassers was composed of six
mem­bers,^[9]
the actuation of only three qualified members could not effect a valid
proclamation of the winning candidates. 
It was in this connection that this Court made reference to Section 159
of the Revised Election Code, and stated that “not even the Commission on
Elect­ions may lawfully appoint any person or officer outside of those
mentioned” in said Section 159. 
This quoted statement from the decision in the Torres case must be
construed in the light of the circumstances obtaining in that case.

In that case, when the district engineer and the superintendent
of schools could not act in the board of canvassers as substitute members,
because they were absent, their places should have been taken by other officials
mentioned in Section 159 who had not yet been appointed as substitutes – and
those other officials Ore the register of deeds, the Clerk of the court of
first instance and the municipal judge of the provincial capital.  In other words, instead of the assistant
civil engineer and the chief clerk taking the places of the district engineer
and the superintendent of schools, respectively, two of the three remaining
Officials mentioned in Section 159 should have been appointed to take the
places of the absent district engineer and division su­perintendent of schools.

The decision of this Court in the Torres case must be understood
to mean that in the event of vacancies in the provincial board of canvassers
the Commission on Elections must appoint substitutes from among officials that
are named in Section 159 of the Revised Election Code, if they are available.  It should be noted that the Torres case was
decided at the time when the provincial board of canvassers of Leyte was composed of only six members.  So, when this Court, in its decision, said
“not even the Commission on Elections may lawfully appoint any person
outside those mentioned,” this Court must be understood to mean that the
substitutes must be appointed out of the six officials named in Section 159 of
the Revised Election Code.  That dictum
in the decision does not preclude an appointment by the Comelec
of other officials in case those named in Section 159 who have
been appointed are not available and there is need of appointing more
substitutes in order to complete the membership of the board of canvassers.

The Comelec has direct and immediate
supervision over the provincial, municipal, and city officials designated by
law to perform duties relative to the conduct of elections, and the Comelec may suspend from the performance of said duties any
of said officials who shall fail to comply with its instruction, orders,
decisions, or rulings, and appoint their temporary substitutes.^[10]
It can happen that officials named in Section 159 of the Revised Election Code
had been appointed as substitutes be­cause of the incapacity of the regular
members of the provincial board of canvassers, and if for some reasons the Comelec would suspend these substitutes because of their
non-compliance with the instructions, decisions, orders, or rulings of the Comelec, certainly, the Comelec
can appoint other officials as their substitutes pursuant to the powers
conferred upon it by Section 3 of the Revised Election Code.

Let it be noted that nowhere in the decision in the Torres case
did this Court say that the President of the Philippines
may appoint any substitute member in the provincial or city board of canvassers.  There is no basis, therefore, in invoking the
decision in the Torres case as authority is asserting that in the event that
all the officials named in Section 159 of the Revised Election Code has been
named as substitutes in the, provincial or city board of canvassers that it is
the President that can fill the remaining vacancies in the board of canvassers
in virtue of the power lodged on the President under Section 28 of the Revised
Election Code.  We have pointed out that
under Sections 159 and 167 of the Revised Election Code it is only the Comelec that can appoint substitute members of the board of
canvassers, either municipal, city, or provincial.  The provisions in these sections of the
Revised Election Code are in keeping with the constitutional objective of
entrusting to the Comelec the administration and
enforcement of all laws relative to the conduct of elections With a view to
insuring clean, honest and fair elections. 
Let it be noted that pursuant to the provisions of Section 160 of the
Revised Election Code, it is the provincial and city board of canvassers that
canvass the votes cast in the elections, not only for provincial or city
officials, but also, for President, Vice-President Senators and Members of the
House of Representatives.^[11]

This Court had occasion to dwell incidentally on the question
involved in the present case in at least two decided cases.  In the case of the City Board of Canvassers, Tacloban City,
et al. v. Hon. Segundo Moscoso, Judge of the Court of
First Instance of Leyte, et al., G. R. No. L-16065, September 30, 1963, the le­gality of
the composition of the city board of canvassers of Tacloban City
was questioned.  It appears that the city
mayor and six city councilors of Tacloban
City were all candidates in the
elections of November 10, 1959
and so they were all disqualified to sit in the city board of canvassers of the
city.  In their places the Comelec appointed the city superintendent of schools, the
city engineer, the city health officer, the city register of deeds, the clerk
of the municipal court, the judge of the city court of Tacloban
City, and the city auditor.  There were
seven vacancies in the city board of canvassers, and to fill the seventh
vacancy, the Comelec designated the city auditor,
although said official is not named in Section 159 of the Revised Election Code
as an official that may be named as substitute member in the city board of
canvassers.  This Court, in ruling on the
designation of the city auditor, tersely held that “Such designation is in
accordance with Section 159 of the Election Code.”

In the recent case of Corazon Espino v. Calixto Zaldivar, etc., et al., G. R. No. L-22325, December
11, 1967, there arose the question of whether the Comelec
can appoint as a substitute for the seventh member of the provincial board of
canvassers an officer who is not named among those mentioned in Section 159 of
the Revised Election Code.  This case
relates to the controversy regarding the proclamation of the winning candidate
for governor in connection with the elections held on November 12, 1963 in the province
of Nueva Vizcaya.  It appears that the provincial board of
canvassers of Nueva Vizcaya
was composed of seven – the governor, the vice-governor, two provincial board
members, the provincial fiscal, the provincial treasurer and the provincial
auditor.  Because of the incapacity or
absence of the regular members of the provincial board of canvassers the Comelec had to ap­point substitutes.  The provincial board of canvassers as finally
constituted by the Comelec, by appointing thereto
substitute members, was composed of the first assistant provincial fiscal (as
chairman), the clerk of the court of first instance, the deputy clerk of the
court of first instance, the municipal judge of Bayombong
(the provincial capital), the officer in charge of the office of the dis­trict
health office, the register of deeds, and the di­vision superintendent of
schools.  Commenting on the com­position
of this provincial board of canvassers, as thus constituted, this Court said:

“It will be seen right away that only (1) the Division
Superintendent of Schools, Eulogio de Guzman; (2) the
Register of Deeds, Ramon V. Purugganan; (3) the Municipal
Judge of Bayombong, Tomas P. Maddela
II; and (4) the Clerk of the Court of First Instance, Miguel M. Guevara, are
amongst those specific officials set forth in Sec­tion 159.  In addition, (5) the Officer-in-Charge of the
District Health Office, Honorato A. Mendoza,
qualifies under Section 159 because at that time the District Health Officer
had already retired.  The District
Engineer, Artemio Tiangco,
should be the number (6) substitute.  But
he could not have been appointed as such because he was, though a substitute,
one of those ori­ginal members of the board who could not be located.  To complete the membership under Section 158
to seven (7), the Provincial Fiscal should also be in.  But his where­abouts, too, were unknown.  In his absence, the First Assistant Fiscal
headed the of­fice.  So, the appointment
of First Assistant Fiscal Melecio A. Genato, as Chairman, was proper.  The Assistant Provincial acts for and in the
absence of the Pro­vincial Fiscal.

“The result is that the only member of the substitute board
whose official designation does not appear in Sections 158 and 159 is Deputy
Clerk of Court Rodolfo Q. Agbayani.

x                    x                      x                      x

“But we do not stop here. 
There is still the question as to whether or not Rodolfo Q. Agbayani, Deputy Clerk of Court, Court of First Instance,
could legally be appointed as member of the substitute board, given the fact
that he is not one of the officials designated in either Section 158 or
159.

“Section 3, Article I of the Revised Election Code, provides
that Comelec ‘may suspend from the performance’ of
‘duties relative to the conduct of elections’ any provincial, municipal, and
city officials designated by law to perform such duties ‘who shall fail to
comply with its instructions, orders, decisions, or rulings and appoint
their temporary substitutes.’ Of course, whether the substitutes qualify
under the law is another matter altogether. 
Adverting to Section 159 of the Revised Election Code, we find that the Comelec may appoint as substitutes the persons
therein named, (1) the superintendent of schools, (2) the district engineer,
(3) the district health officer, (4) the re­gister of deeds, (5) the clerk of
the Court of First Instance, or (6) the justice of the peace of the
capital.  Unquestionably, if the
official’s just named are available, Comelec has no
choice.  They should first be harnessed
into the service.

“But the situation that the case be­fore us presents,
requires analysis.  Point­ed out earlier
is the fact that, by statute (Section 158 of the Election Code), the provincial
board of canvassers consists of seven members: 
the provincial governor; the three members of the provincial board; the
provincial treasurer; the provincial audit­or; and the provincial fiscal.  There is a gap.  For, all the seven were unavailable.  And Section 159 following provides only for
six substitutes.

“Our view is that Deputy Clerk Agbaya­ni
was lawfully named as the seventh member of the board.  His appointment – a necessity to compete the
membership – is not assailed on the ground that he is not qualified to do the
work of canvasser.  In fact, we should say
that with his position, he is presumed to be unbiased and with sufficient
learning to perform the duties of a member of the board.

“Canvassing and proclamation of provincial elective officials
are matters of public concern.  The
Revised Election Code, we are sure, does not countenance unnecessary delay in
proclamation.  The
interests of the province so demand. 
The law would not require that canvassing and proclamation be stopped,
and resume only until such time as all the officials mentioned in Sections 158
and 159 would undertake to perform the task by the election law imposed upon
them.  True it is that coercive measures
could be adopted.  Comelec
may insti­tute contempt proceedings under Rule 64 of the Rules of Court.  It may even recommend to the President the
removal of the said officials on grounds of non-feasance,
malfeasance or misfeasance.  These
measures alone, we are constrained to state, will only spawn further delays in
the canvassing and proclamation.

“We, therefore, hold that the appointment of Deputy Clerk
Rodolfo Q. Agbayani as member of the substitute board
of canvassers for the Province of Nueva Vizcaya, is valid.”

In the case now before Us, in the elections of November 14, 1967,
the city mayor, the city vice-mayor anL all the ten
members of the city council of Butuan City were
candidates, so that of them were disqualified to sit as members of the city
board of canvassers.  As We have pointed out in this resolution, the city board of
canvassers of Butuan
City is composed of thirteen
members, including the city fiscal.  It
thus happened that of the thirteen regular members of the city board of
canvassers as provided in Section 158 of the Revised Election Cole, only the city
fiscal was qualified to sit as member of the board.  There were, therefore, twelve vacancies that
had to be filled.  In a re­solution
(Extra-48), dated November 30, 1967,
the Comelec filled these vacancies by appointing
thereto officials or officers performing duties in Butuan City.  Of the twelve officials or officers appointed
by the Comelec as substitutes, five are those that
are referred to in Section 159 of the Revised Election Code, namely: the city
engineer, in place of the city mayor; the city health officer, in place of the
city vice-mayor; the city superintendent of schools, the city register of
deeds, and the clerk of the city court, in the places of three disqualified
city councilors.  The places of seven
other disqualified city councilors were filled by the Comelec
by appointing the city chief of police, the secretary of the city board, the
chief of the city fire department, the chief deputy assessor of the city, the
assistant city treasurer, the city special counsel, and an engineer in the city
engineer’s office.  No reason appears in
the record why the Comelec did not appoint the city
judge as one of the substitute members.

In consonance with the view herein-above expressed, We hold that the resolution of the Comelec
(Extra-48), dated November 30, 1967, is accordance with the Con­stitution and
the election law.  The composition of the
city board of canvassers of Butuan
City as reconstituted pursuant to
said resolution of the Comelec is, therefore, valid, and said board can legally function in the per­formance
of its duties as provided in the Revised Election Code.

The Court, therefore, resolved to DISMISS the instant
petition.  Let copies of this resolution
be furnished the President of the Senate, the Speaker of the House of
Representatives, the Commission on Elect­ions, and the Secretary of Justice.

IT IS SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez,
Castro, Angeles, and Fernando, JJ., concur.

Bengzon, J.P., J., no part.

^[1]
Cordero v. Court of First Instance of Rizal,
40 SCRA, 246.

^[2]
Section 2095, Revised Administrative Code. 
Section 158 of the present Revised Election Code (Rep. Act 180, as
amended) which was enacted on June 21, 1947, contains the same provision as
Section 153 of Com. Act 357 (the old Election Code), approved on August 22,
1938.

^[3]
Section 154 of Com. Act 357 (the Election Code passed in 1938) has a similar
provision to Section 159 of the present Revised Election Code (Republic Act
180, passed in 1947).

^[4] Section 5, Republic Act 2264.

^[5] Section 11, Revised Election Code.

^[6] Approved on August 22, 1938.

^[7] Specifically, Sections 57 and 62 relating to election precincts and
polling places.

^[8]
Words in parenthesis are supplied for clarity.

^[9]
This was before the enactment of Republic Act 2264 creating the office of the
vice governor and providing for three members of the provincial board in the
first, second and third class provinces. 
Leyte is a first class
province.

^[10] Section 3, Revised Election Code.  This provision of law was
already existing when the Torres case was decided in 1948.

^[11]
See also Article VII, Section 1, Constitution of the Philippines.