LORETO SEARES, PETITIONER, VS. THE HON. COMMISSION ON ELECTIONS, CARMELO BARBERO AND GAVINO BALBIN, RESPONDENTS.

Original action for certiorari filed by Loreto Seares on November 23, 1971 to set aside the minute
resolution of the Commission on Elections (COMELEC for brevity), dated October
26, 1971, denying his petition for the cancellation of the certificates of
candidacy of respondents Carmelo Barbero
and Gavino Balbin under
Section 31 of the Election Code Of 1971, and also the minute resolution dated
November 10, 1971, denying his motion for reconsideration, in Electoral Case
No. C-126.

Respondents Carmelo Barbera
and Gavino Balbin, both
residents of the Municipality of Bangued, Province of
Abra, were candidates for the offices of Governor and
Vice-Governor, respectively, for the elections of November 8, 1971, their
certificates of candidacy having been given due course by the COMELEC on
September 13, 1971.  At that time, respondent
Barbero was the incumbent.  Congressman Of Abra
and had still two(2) years of his term to serve as such Congressman.  He was also a member and President of the
Liberal Party in Abra.

On October 25, 1971, or forty-six (46) days after the legal deadline
for the filing of certificate of candidacy which was September 9, 1971 and only
fourteen (14) days before Election Day, November 8, 1971, petitioner Loreto
Scares, representing himself as a qualified voter in, and as a delegate to the
Constitutional Convention from, Abra, with residence
and postal address at Bangued, Abra,
filed a petition with the COMELEC (Electoral Case No. C-126) for the
cancellation of the certificates of candidacy, under Section 31 of the Election
Code of 1971, of respondents Carmelo Barbera and Gavino Balbin, alleging, among others, that said respondents Barbero and Balbin have no bona fide intention to run for the
offices of Governor and Vice-Governor of Abra, for
the reason that on the occasion of a political meeting held on September 26,
1971 where respondents Barbero and Balbin were proclaimed as the Liberal Party candidates for
Governor and Vice-Governor, and in some political meetings held by them
thereafter, Barbero had stated that if he and Balbin were elected, he will not qualify as Governor so as
to allow Balbin to take the post of Governor, while
he will continue as Congressman of Abra, hence, a
violation of Section 31 of the Election Code of 1971; that Barbero’s
speech was tape recorded and part of the speech referred to was delivered in
English and Ilocano;^[1]
that the full text of Barbero’s speech as tape
recorded by Station DZPA of Abra Community
Broadcasting Corporation, Bangued, Abra, is kept by said broadcasting station; and that this
tape recorded speech was also rebroadcasted on
October 3, 1971 upon the request of said respondents.  Petitioner then prayed that the certificates
of candidacy of respondents Barbero and Balbin be not given due course and, instead; they be
ordered cancelled and expunged from the records.^[2]

On October 26, 1971,
respondent COMELEC issued a minute resolution denying, for lack of merit,
petitioner’s petition for the cancellation of the certificates of candidacy of
respondents Carmelo Barbero
and Gavino Balbin.

On October 27, 1971,
petitioner moved for the reconsideration of said minute resolution, supported
by his memorandum dated November 2,
1971.

On November 10, 1971, or two (2) days after Election Day,
November 8, 1971, respondent COMELEC issued another minute resolution denying,
for lack of Merit, petitioner’s motion for reconsideration.

Hence, petitioner filed on November 23, 1971 the present petition
for certiorari contending, among others, that respondent COMELEC has
decided a question of substance not heretofore determined by this Court, and
has decided this question not in accord with the Election Code of 1971 because
what the COMELEC should have done was to refuse giving due course to the
certificates of candidacy of respondents Barbero and Balbin by applying Section 31 of said Code; and that
respondent COMELEC has gravely abused its discretion amounting to lack of jurisdiction.  Petitioner then prayed that the aforesaid
minute resolutions of the COMELEC dated October 26, 1971 and November 10, 1971,^[3]
as well as the certificates of candidacy of respondents Barbero
and Balbin, be declared null and void; and that said
respondents be disqualified from assuming the office of Governor and
Vice-Governor, respectively.

In the meanwhile, or on December
1, 1971, respondents Barbero and Balbin were proclaimed, by the Provincial Board of
Canvassers of Abra, as the Governor-elect and
Vice-Governor-elect, respectively, in the election of November 8, 1971,^[4]
they having garnered overwhelming votes as against their respective opponents.^[5]
During the fifteen-day period after the proclamation, no voter contested the
election of either Barbero or Balbin,
on the ground of ineligibility, cases of which have to be decided within thirty
(30) days.^[6]

In due time, respondents COMELEC, Barbero
and Balbin filed their respective comments, answers
and memoranda to the instant petition for certiorari.  They contend, among others, that the
provision of said Section 31 of the Election Code of 1971 refers only to those
cases where the certificate of candidacy has been filed to cause confusion
among the voters by the similarity of the names of the registered candidates or
by other circumstances which demonstrate that the candidate has no bona fide
intention to run for the office and thus by such artifice prevent a
faithful determination of the true will of the electorate.  In short, said Section 31 refers only to nuisance
candidates of which category respondents Barbero
and Balbin do not appertain.

In its answer, respondent COMELEC contended that the instant case
has become moot considering that respondents Barbero
and Balbin have already been proclaimed on December
1, 1971 as Governor-elect and Vice-Governor-elect of Abra,
respectively, and it is a general principle of law that proclamation of the
winning candidates by the Board of Canvassers made in the regular performance
of duty makes the election of these officials a consummated act,^[7]
and that, since this is a case of disqualification in office, petitioner should
have filed a case of quo warranto before
the Court of First Instance, and not before the COMELEC.

Prescinding, however, from the
foregoing, and considering that respondent Carmelo Barbero failed to take his oath as Governor within the
period provided by law, thereby forfeiting his right to the position,^[8]
and, as a consequence, respondent Gavino Balbin succeeded respondent Barbero
as Governor of Abra,^[9]
pursuant to Section 17 of said Code,^[10]
without the former having been removed or replaced; and considering further,
that the four-year term of office of those elected and proclaimed in the
election of November 8, 1971, particularly the offices of Governor and
Vice-Governor has already expired, We find the present petition as moot and
academic.

ACCORDINGLY, the petition for certiorari is hereby DISMISSED,
without any pronouncement as to costs.

Fernando, (Chairman), Barredo, Aquino, and Martin,
JJ., concur.

Concepcion, Jr., J., on leave.

^[1]
Annex “D”, Petition.

^[2]
Annex “A” of Petitioner’s Reply to Comment, pp. 54-69, SC Rollo.

^[3]
Annexes “A” and “B”, Petition.

^[4]
Certificate of canvass of the votes cast and proclamation of the winning
candidates for provincial offices by the Provincial Board of Canvassers on
November 8, 1971 Election, Annex “8” of Respondent Barbero’s Answer dated March 1, 1972, p. 192, SC Rollo.

^[5] Candidates
for Governor:

Carmelo
Z. Barbero . . . . . . . . . . . . . .    23,163 Votes

Petronilo
V. Seares . . . . . . . . . . . . . .    16,762    
“

Elpidio
B. Valera . . . . . . .  . . . . . . . . .        297     “

Candidates for Vice-Governor:

Gavin V. Balbin . . . . . . . . . . . . . . . . . .  20,982 Votes

Paterno
P. Aquino . . . . . . . . . . . . . . . .  17,568    
“

Pershing Mendez . . .
. . . . . . . . . . . . . .        54    
“

^[6]
Section 219, Election Code of 1971.

^[7] Lachica v. Yap,
L-25379, September 2, 1958.

^[8]
Pursuant to Section 24 of the Election Code of 1971, which provides:

“SEC. 24. Candidate holding
elective office. –

* * *      * * *      *
* *

Every elected official shall take
his oath of office on the day his term of office commences, or within ten days
after his proclamation if said proclamation takes place after such day. His
failure to take his oath of office as herein provided shall be considered forfeiture
of his right to the new office to which he has been elected unless said
failure is for a cause or causes beyond his control.” (Italics supplied.)

^[9] Balbin’s Answer, p. 126, SC Rollo.

^[10]
The pertinent provision reads:

“SEC. 17.  Vacancy in elective provincial, sub-provincial,
city, municipal or municipal district office. – In case of a permanent
vacancy in a provincial, sub-provincial, city, municipal or municipal district
office, the officer next in rank shall assume the vacant office for the
unexpired term: Provided, That such officer meets all the requirements for
the office.” (Italics supplied.)