FELIX LOMUGDANG (DECEASED), PROTESTANT, VS. PATERNO JAVIER, PROTESTEE-APPELLANT, PABLO PE ALOLOD, INTERVENOR-APPELLEE.

Paterno Javier appeals on points of law
from a decision of the Court of First Instance of Antique, in election contest
Case No. 3-63 of said Court, declaring the deceased Felix Lomugdang
as having received a plurality of votes for the office of Municipal Mayor of Culasi, Antique, as against contestee,
Paterno Javier, and declaring the Vice-Mayor elect,
Pablo Pe Alolod, entitled
to assume the office in view of the death of the protestant.

The facts of the case are the following:

On May 17, 1966,
the Municipal Board of Canvassers of Culasi, Antique,
certified that in the general elections held on November 12, 1963, Paterno Javier had received 1,203 votes, the plurality of
the votes cast for Municipal Mayor according to the election returns, and
thereby proclaimed him Mayor.  Felix Lomugdang, having obtained the second place with 1,150
votes, on May 30, 1966,
protested against the election of Paterno Javier.

In his motion of protest, Lomugdang
impugned the result of the election in Precinct No. 4, CuIasi,
Antique, alleging as grounds the commission of errors or irregularities by the
Board of Election Inspectors; erroneous appreciation of ballots, and improper
adjudication of votes.

Paterno Javier in due time filed his answer and counter-­protest,
wherein he impugned the result of the election in Pre­cincts Nos. 1, 2, 4, 5, 6, 9, 10, 11, 12, 13, 18, 19, 24,
25, 26, 28, 29, 30, 31, 34, 35 and 36, alleging as ground the commis­sion of
errors or irregularities by the Board of Election Inspec­tors; erroneous
appreciation of ballots, and improper adjudica­tion of votes in the counter-protested
precincts.  It was likewise alleged that
the ballots in the counter-protested precincts, ex­cept the ballots in the
ballot box of Precinct No. 4, were burned pursuant to Section 157 of the
Revised Election Code, when the ballot boxes were used in the elections of
November, 1965; and that he would present evidence aliunde
to prove the allegations in the counter-protest.

Shortly before the case was first set for hearing on July 18, 1966, and before any
evidence could be adduced in the hearing of the protest, the protestant met an untimely death.  The protestee, through counsel, moved to dismiss the protest on
July 22, 1966.  On September 1, 1966, Pablo Pe Alolod who was elected
Vice-Mayor of Culasi, Antique, filed a motion to
intervene and/or for substitution, alleging that he would be entitled to the
office in the event the protestant would prevail over the protestee
in ac­cordance with Section 7 of Republic Act 2264.  The protestee
opposed this motion to intervene and/or for substitution, alleg­ing that
Vice-mayor Pablo Pe Alolod
has no right to intervene under the provisions of Section 176(g) of the Revised
Election Code.  On September 27, 1966, the trial court denied protestee’s motion to dismiss the protest and allowed
Vice-mayor Paolo Pe Alolod
to intervene in the case.  On September 2, 1966, the protestee filed a motion for reconsideration of the Order
denying his motion to dismiss and allowing the vice-mayor to intervene.  This motion for reconsideration was denied on
October 3, 1966.

On order of the trial court, the commissioner opened the ballot
box of Precinct No. 4 on October 11,
1966, and rendered its report. 
It appears from the report of the commissioners that 83 ballots were
claimed by Felix Lomugdang, and 17 ballots were
claimed by Paterno Javier.  Of the 83 ballots claimed by Lonug­dang, 46 were admitted and 37 were objected to by the
protestee. 
Subsequently, the protestee withdrew his
objections to 3 ballots, leaving 34 ballots objected to by the protestee, which
were marked as Exhibits J-1 to J-34. 
Of the 17 ballots claimed by the protestee,
none was objected to by the protestant.

On October 24, 1966, the intervenor,
Vice-Mayor Pablo Pe Alolod
moved for the dismissal of the counter protest, on the ground that all the
ballots in the counter protested precincts, except those in Precinct No. 4,
have been burned pursuant to Section 157 of the Revised Election Code, and that
evidence aliunde is not admissible to prove
the allegations in the counter protest, since the burning of the ballots was
done without the intervention or fault of either party.  The protestee
opposed the intervenor’s motion to dismiss the
counter protest, for the reason that in said counter-protest, he impugned the
correctness of the certificate of canvass and the correctness of the election
returns in twenty-two (22) precincts; and that the ballots in the counter
protested precincts, except those in Precinct No. 4, having been burned in
accordance with law, he is entitled to prove by tes­timony of the individual
voters that they have voted for the pro­testee, in
numbers exceeding those returned by the inspectors as having cast their votes
for the protestee in the counter pro­tested
precincts.

In its order of November 14, 1966, the trial court deferred resolution on the
motion to dismiss the counter protest, and re­scheduled the hearing of the
protest and counter-protest for Nov­ember 22, 1966.  On November 22, 1966, the court ordered the
election returns marked (Exhs. L-1 to L-18), and
commissioned the Clerk of Court to receive them, after which the Court would
resolve whether or not to allow the protestee to
introduce evidence aliunde consisting of the
testimony of the voters, and should the Court resolve to deny said motion, then
the whole case would be deemed submitted for decision.  On December 15, 1966, the trial Court denied
the petition of the protestee to present evidence aliunde in connection with the precincts involved in
the counter protest, and considered the case submitted for decision.

In its decision of January 26, 1967, the Court declared the
protestant, Felix Lomugdang, the duly elected
Municipal Mayor of Culasi, Antique in
the elections of November 12, 1963, with a plurality of seven (7) votes over
the protestee, Paterno
Javier, and held Vice-Mayor Pablo Pe Alolod entitled to the office.

Protestee appealed to the Court of
Appeals, from that decision the lower court of January 26, 1967; the order of
December 15, 1966; dismissing the counter-protest, the order of January 6,
1967, denying the motion for reconsideration of that order of December 15, and
from the order of January 20, 1967, not giv­ing due course to the appeal from
the orders of December 15, 1966 and January 6, 1967.  The Court of Appeals, however, cer­tified the
case to this Court, the issues involved there a being purely of law.

Only the protestee-appellant filed his
brief, in August, 1967, but all parties prayed this Court to decide the case as
early as possible, thereby submitting the case for decision without the appellees brief.

Appellant Javier in his brief assigns the following alleged
errors:

I.                    
The trial court erred in not dismissing the
protest upon the death of the protestant before the hearing of the protest,
there having been no show­ing as yet that the election of the protestee is void or that the protestee
had not obtained the majority of
votes in the elections held on November 12, 1963.

II.                  
The trial court erred in not allowing the protestee to offer evidence aliunde
to prove the allegations in his counter-protest — the ballots in the twenty-two
counter-protested precincts, except the ballots of Precinct No. 4, having been
burned pursuant to Section 157, Revised Election Code — and, in effect,
dismissed the counter-­protest.

III.                 
The trial court erred in allowing Vice-Mayor
Pablo Pe Alolod to
intervene in the case.

IV.               
The trial court erred in declaring the pro­testant
elected Municipal Mayor of Culasi, Antique, in the
elections held on November 12, 1963.

The first and third assignments refer to the same issue and can
be discussed together.  Determination of
what candidate has been in fact elected is a matter clothed with public
interest, wherefore, public policy demands that an
election contest, duly commenced, be not abated by the death of the
contestant.  We have squarely so ruled in Sibulo Vda. de De Mesa vs. Judge Mencias, G. R. No.
L-24583, October 29, 1966, in the same spirit that led this Court to hold that
the ineligibility of the protestant is not
a defense (Caesar vs. Garrido, 53 Phil. 97), and that
the protestee’s cessation in office is not a ground
for the dismissal of the contest nor detract the Court’s jurisdic­tion to
decide the case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo
vs. Hernandez, 62 Phil. 584).

In the same Sibulo case, already
cited, this Court likewise ruled that by virtue of Section 7 of Republic Act
2264, the vice-mayor elect has the status of a real party in interest in the
con­tinuation of the proceedings and is entitled to intervene therein.  For if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to the
office of mayor that becomes vacant if the one duly elected can not assume the
post.

Hence, no error was committed by the Court below in allow­ing
Vice-Mayor Alolod to intervene in the protest at
bar.  Appel­lant’s first and third
assignments of error must be and are over­ruled.

The next issue is whether the Court below should have per­mitted
the protestee-appellant’s offer of evidence aliunde (consisting of the testimony of the voters
themselves) to support the counter-protest against the official returns in some
22 precincts, because the ballots cast therein were burned after three months,
conformably to section 157 of the Revised Election Code (R. A. No. 180, as
amended).  The Court a quo
rejected this offer for the reason that to allow the voters in said precincts
(some 4,000 in all) to reveal the names of the candidates for whom they voted
would amount to holding another election.

We see no error in the resolution of the trial Court.  Because of previous incidents in this case
that had to be resolved by this Court (G. R. No. L-22248, January 30, 1965; G. R. No. L?24747,
February 28, 1966) hearings on the merits of the protest did not start
until October 1966, and it is easy to see that the presentation of the 4,000
witnesses in support of the counter­-protest would have brought the hearings to
unmanageable pro­portions and prolonged the trial even beyond the end of 1967,
when the term for which the candidates were
to hold office would expire. 
Furthermore, had the protestee-appellant acted
with due diligence and notified the municipal treasurer in due time of his
intended counter-protest, the destruction of the ballots of the affected
precincts would have been avoided.  Only
the protestee could have done so, for only he was in
a position to know what precincts would be the subject of his counter protest.  All in all, we perceive here an obvious
design of appellant for protracted delay that could not and should not receive
either en­couragement or sanction from the Courts.

Appellant relies on Salvani vs. Garduno,
52 Phil. 673, 679, as authority for the admissibility of the testimony
of the electors for the purpose of impeaching the returns when the ballots are
shown to have been destroyed.  But the Salvani case involved only one precinct, while in
the present case, appellant wished to introduce the testimony of the electors
in practically all the precincts of the municipality, a procedure that for the
reasons previously given, is improper.  As aptly remarked by the Court below, it
would amount to holding practically a new election, without the secrecy that
public policy considers as essential to the electors’ freedom of choice.

WHEREFORE, finding no reversible error in the decision
appealed from, the same is hereby affirmed. 
Considering the proximity of the next elections, this decision shall
become final within five (5) days from notice to the parties.  Costs against appellant.

SO ORDERED.

Dizon, Makalintal,
Sanchez, Castro, Angeles and Fernando, JJ., concur.

Concepcion, C.J., and Bengzon J., on official leave and did not take part.

Zaldivar, J., did not take part.