MACARIO E. CAESAR, CONTESTANT AND APPELLEE, VS. FILOMENO GARRIDO, CONTESTEE AND APPELLANT.

This proceeding is a contest over the office of president in the
municipality of Cabalian, Province of Leyte,—a sequel to the general
election held on June 5, 1928. As a result of said election the
contestee, Filomeno Garrido, was proclaimed elected with a plurality of
27 votes over the contestant, Macario E. Caesar. A third candidate for
the same office, one Julian Cordobes, is named as a contestee in the
motion, but he has not participated in the contest. Upon hearing the
case the trial court reversed the result reached by the board of
canvassers and found that the contestant had been elected over Garrido
by a plurality of 71 votes. Judicial declaration was accordingly made
to the effect that Macario E. Caesar had been elected to the office and
judgment was given against the contestee Garrido for costs and
expenses, including the fees of the commissioners. From this judgment
Garrido appealed.

The contest was instituted by a motion beginning with the statement
that the contestant was a duly qualified elector in the municipality of
Cabalian and was a registered candidate who had received votes for the
office of municipal president in the election mentioned. Upon the
filing of this motion the contestee moved to dismiss on the ground that
it was not alleged in the contestant’s motion that the contestant was,
at the time of the election, eligible to the office for which
he was a candidate. This motion to dismiss was overruled by the trial
court on the two grounds that the allegation that the protestant was a
duly qualified elector and registered candidate should be taken as
implying that he was eligible to the office, and that, at any rate, the
ineligibility of a candidate is not proper matter of exception or
defense in a contest over an election. To this ruling the contestee
excepted, and error is here assigned thereto.

To dispose of this preliminary matter at once, we may say that we
concur in the conclusion of the trial court that it was unnecessary for
the contestant to allege in his motion that he was eligible to the
office of president. The allegations of the motion in this case are in
a form approved by the majority of the court in Viola vs. Court of First Instance of Camarines Sur, and Adolfo (47 Phil., 849), and Tabada vs.
Zandueta and Vergara (47 Phil., 859); and we are of the opinion that no
more is necessary to give the court jurisdiction over the matter. The
case of Verceles vs. Araneta Diaz (47 Phil., 843), contains
nothing in support of the contention of the appellant to the contrary.
The point decided in that case was merely to the effect that it is not
necessary for the contestant to allege in his motion that the
contestee was a registered candidate who had been voted for in the
election. It is enough to make this allegation with respect to the
contestant only. Furthermore, as the trial court observed, the question
of the eligibility of a candidate for office is not properly involved
in a proceeding of contest. But of this more will be said in our
discussion of the defenses set forth in the contestee’s answer.

We now proceed to inquire into the number of votes received by the
two respective opponents who are concerned in this litigation. In this
connection we note that the contestant challenges the returns from one
precinct only, namely, the first precinct of Cabalian. It is proved
that, when the votes were counted in this precinct, the inspectors
counted 135 votes for the contestant, Macario E. Caesar, and these were
duly noted on the tally sheets. Nevertheless, when the official returns
were made out, two of the three inspectors, constituting a majority of
the board, ruled that these votes could not be returned for the
contestant, for the reason that his name did not appear in the official
list of enrolled voters in any precinct in the municipality, it being
supposed that this fact rendered him ineligible to the office and
disqualified him from being considered a candidate. The 135 votes
received by him in this precinct were therefore treated as scattering
votes cast for persons not registered as candidates.

When the contest with respect to this precinct came on to be tried
in the Court of First Instance, commissioners were appointed by the
court to open the boxes from the first precinct and count the votes
found therein. When the votes were thus recounted by the commissioners,
it was H ^covered that the contestant had received 139 votes, and
though exception was taken to twelve of these by the contestee on some
ground or other, there remained in favor of the contestant 127
unexceptional votes. When confronted with this report, the trial judge
correctly held that these 127 votes should be counted for the
contestant; and after adjusting1 the votes cast for the contestee in
the same precinct, his Honor found that in the entire municipality the
contestant had gained the election over the contestee by a plurality of
71 votes.

In this ruling the trial judge was correct. While it is admitted
that the name of the contestant was not entered as that of a qualified
voter in the registration list of any precinct of the municipality of
Cabalian, for the election in question, this circumstance did not
justify the election inspectors of the first precinct in discarding the
votes obtained by the contestant in that precinct. In Yra vs.
Abano (52 Phil., 380), this court held that while a candidate, in order
to be eligible for municipal office, must have the general
qualifications pertaining to voters, he need not be actually enrolled
in the list of voters. It clearly appears from Exhibit A that the
contestant was duly registered as a candidate to the office of
municipal president in the election in question, and the inspectors had
no right to go behind that certificate. The certificate of registration
of a candidate for municipal office must be considered conclusive on
the inspectors as regards the right of such candidate to be credited
with the votes which he in fact receives in the different precincts of
the municipality. The general question of the eligibility of a
candidate for office is one with which the inspectors have no concern,
their duties being confined to the conduct of the election, the
counting of the votes, and the certification of the results in so far
as relates to the certified candidates.

In the answer filed by the contestee after his motion to dismiss had
been overruled it is alleged, by way of special defense, that, prior to
the election, the contestant had not been a resident of the
municipality of Cabalian either for the period of one year necessary to
make him eligible for municipal office or even for the six months
necessary to entitle him to be enrolled among the qualified voters of
the municipality. The trial judge, however, held that the issue, or
issues, thus tendered were irrelevant to the contest, and he ignored
the testimony submitted by the contestee tending to establish the fact
that the contestant had not been a resident of Cabalian for the time
requisite to make him eligible to office. In this there was no error.
The ineligibility of the mover of an election contest, supposing him to
have been a duly registered candidate, is not available as a defense in
the contest proceeding. The reason is that the contest raises merely a
question as to the number of votes received by the opposing candidates.
Eligibility is a matter wholly apart from the question of the number of
votes received by a candidate, and its solution depends upon
considerations quite different from those involved in a contest. As the
law formerly stood, under section 12 of Act No. 1582 and section 2 of
Act No. 1726, the ineligible official, being a provincial officer, was
removed by the Governor-General; while in the case of municipal
officers, removal was effected by the provincial board or summary order
of the Governor-General. As long as the law remained in this state, it
was a rule that the eligibility of a candidate could not be considered
in an election contest (Topacio vs. Paredes, 23 Phil., 238).
The law concerning the removal of ineligible officials has, however,
been changed; and it is now provided that when a person, alleged to be
ineligible, is elected to a provincial or municipal office, his right
thereto is to be tried, upon the relation of any elector of the
province or municipality concerned, in a special proceeding in the
nature of an action of quo warranto; and this proceeding must be
instituted within the two weeks after the proclamation of the election
of the person whose right to office is questioned (Election Law, sec.
408, as amended by Act No. 3387). The result is that, as the law now
stands, the question of eligibility may be tried in a judicial
proceeding. But the proceeding in which it may be tried is not a
contest; and the defense based on the alleged ineligibility of the
contestant is completely incongruous with the issue of an election
contest.

Moreover, it is to be observed that the proceeding in the nature of
quo warranto to try the question of the eligibility of a candidate is
to be instituted within the two weeks after the proclamation of the
person whose right to office is challenged. In the proceeding now
before us the contestant has never been proclaimed at all and will not
be proclaimed, in the sense of the law, until the decision of this
court is published. The issue of ineligibility which is attempted to be
raised in the answer is premature.

Another reason readily suggests itself why the ineligibility of the
contestant is not available as a defense in this contest. This consists
in the fact that, if the person who has received a majority or
plurality of votes in any election is found to be ineligible, the
result is that the office is declared vacant andi a new election has to
be held to fill the vacancy. In the case before us, if we should accept
the defense of the ineligibility of the contestant and adopt the course
of dismissing the contest for that reason, the result would be that the
contestee would be in office though he in fact received fewer votes
than the contestant.

But it is said that the court should admit the defense in this
proceeding for the purpose of avoiding circuity of action. The
suggestion is worthy of consideration, because it is a cherished rule
of procedure that a court should always strive to settle the entire
controversy in a single proceeding, leaving no root or branch to bear
the seeds of future litigation. But this rule cannot be applied in a
case where the suggested defense is incongruous and premature. The
eligibility of the contestant must, we think, be made the subject of a
separate proceeding at the proper juncture.

In the appealed decision we find an observation to the effect that
the contestant’s certificate of candidacy (Exhibit A) is conclusive of
the question of the eligibility of the contestant. His Honor no doubt
intended that observation to be understood in connection with this
contest, and in that sense the statement is true. But of course said
exhibit would not be conclusive in any proper proceeding, in the nature
of quo warranto, instituted, under section 408 of the Election Law, for
the purpose of testing the eligibility of the contestant to office.

From what has been said it follows that the judgment appealed from
must be affirmed, and it is so ordered, with costs against the
appellant.

Johnson, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.