TIMOTEO BERMUDEZ, PETITIONER, VS. THE COURT OP FIRST INSTANCE OF TAYABAS ET AL., RESPONDENTS.

This is an original action in the Supreme Court, the object of which
is to compel the respondent judge, by mandamus, to reinstate a certain
election contest and to proceed with the trial thereof.

The demurrer to the petition having been overruled in a minute order
dated November 7, 1916, and the respondents having filed their answer,
the case was submitted, after argument, upon the merits. The facts are
these:

At the general election held on June 6, 1916, Timoteo Bermudez,
Leoncio Sena, and Severino Martinez were opposing candidates for the
office of municipal president of Pagbilao, Province of Tayabas. Sena was
proclaimed elected by the municipal board of canvassers on June 7,
1916. Bermudez filed his motion contesting the election on June 21,
1916, and duly notified Sena and Martinez thereof on the 26th and 28th
of that month, respectively. Sena alone appeared, and by written
motion, dated July 1, 1916, moved the court to dismiss the contest for
the following reasons;

“(2) That the motion of protest was not served on this respondent or
on the other candidate voted for, either before or at the time it was
presented or within the two weeks’ period allowed by law for its
presentation, and such notification was only served on the respondent on
June 26, 1916, and on the other candidate, long afterwards.

“(3) That, furthermore, the said motion of protest was not entered in
the registry of the clerk of the court within the period of two weeks
subsequent to the canvass made by the municipal board.”

Paragraph (1) of the motion to dismiss, refers to the promulgation
of the canvassing board’s proclamation, and paragraph (4) contains the
prayer for the relief sought.

The trial court’s decision upon the motion reads:

“After a consideration of the motion to dismiss, filed in this case
by the respondent, it appears that, according to the notice of protest,
the municipal board of canvassers, on June 7, 1916, proclaimed the
respondent Sena elected to the office of municipal president of
Pagbilao, and that the notice of protest was not served by the
petitioner on the respondent until June 28th, that is, until five days
after the expiration of the legal period of two weeks.

“In view of the preceding facts disclosed by the record, the court
holds that it has not acquired jurisdiction in the case, as the notice
of protest was served after the expiration of the legal period. The
question at issue has been extensively discussed by learned counsel on
both sides, but in the opinion of the court it is already clearly and
positively decided in favor of the herein respondent, by the Honorable
Supreme Court in its decision in the case of Navarro vs. Veloso (23 Phil. Rep., 625).

“Therefore, without further necessity of a ruling on the additional
motion for alleged failure to serve notice, of the protest on all the
candidates voted for, this case is hereby dismissed for lack of
jurisdiction of the court. The costs shall be assessed against the
petitioner, Timoteo Bermudez. So ordered.

“Given in Lucena, Tayabas, this 25th day of July, 1916.” The
additional motion, mentioned in the last paragraph of the decision,
does not form a part of the record in the case under consideration.

From the motion and the decision it will be seen that three
questions, all relating to the jurisdiction of the court,
were-submitted for determination. These questions were: (1) Were the
notices which were served upon Sena arid Martinez on the 26th and 28th
of June, respectively, whereby they were notified of the filing of the
contest, a compliance with the provision of the Election Law? (2) Was
the motion of contest filed in court within the time required by law?
And (3) were all the candidates voted for notified? (Additional motion.)

During the hearing of the demurrer and also the hearing of the case
upon the merits, counsel for the respondents further urged that the
lower court was without jurisdiction to proceed with the contest,
because the notices served upon Sena and Martinez did not fix a day for
the hearing of the case as required by section 27 of Ajct No. 1582, as
amended by section 2 of Act No. 2170, effective February 1, 1912, and
sections 576 and 578 of the Administrative Code, effective July 1, 1916.

As to the second question, it is sufficient to say that the motion
of contest was filed within two weeks (excluding the 7th and including
the 21st) after the promulgation of the municipal canvassing board’s
proclamation. The first question and the one raised in this court
relate to the nature and character of the notice which must be served
upon all candidates voted for. The solution of these questions requires
an examination of the statutory provisions governing judicial election
contests. Section 27 of Act No. 1582, as amended by section 2 of Act
No. 2170 reads:

“Election contests.—The Assembly shall be the judge of the
elections, returns, and qualifications of its members. The time for the
filing of (the contests, the notification thereof, and the expenses,
costs, and bonds shall be fixed by resolution of the Assembly which
shall be effective until repealed. Contests in all elections for the
determination of which provision has not been made otherwise shall be
heard by the Court of First Instance having jurisdiction in the
judicial district in which the election was held, upon motion, by any
candidate voted for at such election. The contests shall be filed with
the court within two weeks after the election and shall be decided by
the same as soon as possible after the hearing of the contest. Such
court shall have exclusive and final jurisdiction, except as
hereinafter provided, and shall forthwith cause the registry lists and
all ballots used at such election to be brought before it and examined,
and to appoint the necessary officers therefor and to fix their
compensation, which shall be payable in the first instance out of the
provincial treasury, and to issue its mandamus directed to the board of
canvassers to correct its canvass in accordance with the facts as
found. If in any case the court shall determine that no person was
lawfully elected it shall forthwith so certify to the Governor-General,
who shall order a special election to fill the office or offices in
question as herein before provided: Provided, however, That an
appeal may be taken to the Supreme Court, within ten days, from any
final decision rendered by the Court of First Instance on contests of
elections for provincial governors, for the review, amendment, repeal,
or confirmation of such decision, and the procedure thereon shall be
the same as in a criminal cause.

“Before the court shall entertain any such motion or admit an appeal,
the party making the motion or filing the appeal shall give bond in an
amount fixed by the court with two sureties satisfactory to it,
conditioned that he shall pay all expenses and costs incident to such
motion or appeal, or shall deposit cash in court in lieu of such bond.
If the party paying such expenses and costs shall be successful they
shall be taxed by the court and entered and be collectible as a
judgment against the defeated party.

“All proceedings under this section shall be upon motion with notice
of not to exceed twenty days to all candidates voted for and not upon
pleadings or by action, and shall be heard and determined by the court
in the judicial district in which the election was held regardless of
whether said court be at the time holding a regular or stated term. In
such proceedings the registry list as finally corrected by the board of
inspectors shall be conclusive as to who was entitled to vote at such
election.

“The clerk of the court in which any such contest is instituted
shall give immediate notice of its institution and also of the
determination thereof to the Executive
Secretary.”

Acts Nos. 1582 and 2170 were repealed by Act No. 2657, known as the
Administrative Code. Sections 576 and 578 of this Code read as follows:

“Sec. 576. Contested election to office in general.—Contests
in all elections for the determination of which provision has not been
made otherwise shall be heard by the Court of First Instance having
jurisdiction in the judicial district in which the election was held,
upon motion by any candidate voted for at such election. The
contests shall be filed with the court within two weeks after the
election and shall be decided by the same as soon as possible after the
hearing of the contest. Such court shall have exclusive and final
jurisdiction, except as hereinafter provided, and shall forthwith cause
the registration lists and all ballots used at such election to be
brought before it and examined, and to appoint the necessary officers
therefor and to fix their compensation, which shall be payable in the
first instance out of the provincial treasury, and to issue its
mandamus directed to the board of canvassers to correct its canvass in
accordance with the facts as found.

“Sec. 578. Mode of procedure in court cases.—Proceedings
for the judicial contest of an election shall be upon motion with
notice of not to exceed twenty days to all candidates voted for and not
upon pleadings or by action, and shall be heard and determined by the
court in the judicial district in which the election was held
regardless of whether said court be at the time holding a regular or
stated term. In such proceedings the registration list as finally
corrected by the board of inspectors shall be conclusive as to who was
entitled to vote at such election.

“The clerk of the court in which any such contest is instituted
shall give immediate notice of its institution and also of the
determination thereof to the Executive Secretary.”

Section 27 of Act No. 1582, as originally enacted, provided that:

“Contests in all elections for the determination of which provision
has not been made otherwise shall be heard by the Court of First
Instance having jurisdiction in the judicial district in which the
election was held, upon motion by any candidate voted for at such
election, which motion must be made within two weeks after the
election. * * *.”

While the question whether the court acquired jurisdiction of the
persons of the contestees, Sena and Martinez, must be determined in
accordance with section 27 of Act No. 1582, as amended, and not under
the provision of sections 576 and 578 of Act No. 2657, because the
latter were not in force at the time, yet the provision of both are
essentially the same.

The “motion” of contest when filed within the time required by the
Acts, gives the court jurisdiction of the subject-matter of the
proceedings, provided the necessary jurisdictional facts are alleged.
The statute is silent as to the form which the motion shall take, and
the fullness and particularity of its averments. It should state, of
course, in a legal, logical form the facts constituting the grounds of
complaint, with the name of the court wherein it is to be filed, the
fact that the contestant is one of the candidates voted for, and that
the contestee, or one of them, was declared elected, otherwise it is
demurrable (Navarro vs. Veloso, 23 Phil. Rep., 625). Again,
the statute is silent as to whether the contestees must answer the
motion of contest in writing. That they have a right to and should do so, cannot be doubted. This is the established practice in this
jurisdiction in case a demurrer is not interposed. The result is that
judicial election contests are, and must necessarily be, what the term
implies—adversary proceedings by which the matters in controversy may
be settled upon issues joined. The “motion” which institutes the
contest is not one of those motions made to the court in ordinary
practice by a party to a case for the purpose of obtaining some rule or
order. It is the contestant’s statement of facts or combination of
facts which gives rise to his right of contest and which, as we have
stated, institutes the proceedings. All the proceedings must be upon
this motion. There can be no contest without it. It serves the purpose
of a complaint in an ordinary civil action.

Under section 27, supra, the Court of First Instance was
authorized to hear and determine all questions touching the legality of
the election and that authority was continued by the enactment of
sections 576 and 578 of Act No. 2657. But before the court could
exercise such power it must have acquired jurisdiction of the
subject-matter of the proceedings and of the persons of all the
candidates voted for. The former is acquired in the manner above
indicated, and the latter can only be acquired by giving the candidates
due and timely notice of the motion of contest. That this is the
character of the notice, there can be little room for doubt. The words
“with notice” refer to the “motion” upon which all the proceedings are
based. To hold that the “notice” is one whereby the contestant fixes a
definite date for the hearing of the contest would be contrary to the
clear intent of the legislature and the established practice in all
civil adversary proceedings wherein important rights are determined.
The date for the hearing of the contest cannot be fixed before the
necessary parties are brought into court and are given an opportunity
to prepare their defense. And furthermore, the fixing of the date for
the hearing of the contest in the “notice” would, in many instances, be
a useless procedure because the judge of the district might then be
holding court in some other part of the province or subprovince, or in
an entirely different province, as in the instant case, where section 5
of Act No. 2347 requires that the terms of court for the Fourteenth
District shall be as follows: “At Lucena, Province of Tayabas, on the
first Tuesday of January, July,and November of each year. At Boac,
subprovince of Marinduque, on the second Tuesday of March and August of
each year.” Notwithstanding the fact that the court is required to hear
and determine the contest in the judicial district in which the
election was held regardless of whether it be at the time holding a
regular or stated term, yet no one will contend that the judge must
adjourn court in the province or subprovince and go to another for the
sole purpose of hearing a municipal election contest on a date fixed by
one of the parties. The creation of such a condition of affairs cannot
be attributed to the Legislature. The “notice” must, therefore,
necessarily be a notification of the motion of contest and serves the
purpose of a citation or summons. When the motion is filed and the
notice is thus given, the contest is then in court and must be
determined as soon as possible, consistent with the due administration
of justice and in accordance with the ordinary rules of practice.

It is further contended that if it be held that the notice serves
the purpose of a citation and not the fixing of a date for the hearing
of the contest, still the court was without jurisdiction for the reason
that Martinez was not notified until the 28th of June, which was on the
twenty-first day after the promulgation of the proclamation. If the
twenty days began to run on the 8th, then the contention of counsel is
well founded. But we are of the opinion that the true date from which
the twenty days start, is the date of the filing of the motion in
court. All the proceedings must be upon the motion with notice of not
to exceed twenty days to the candidates. The notice, which must be
accompanied by a copy of the motion, or which, at least must contain
the essential allegations in the motion, cannot be served until it is
prepared, and while the motion is a step in the proceedings, no
judicial action can be had thereon until it is filed in court. The
contestant is given two full weeks from the date of the promulgation of
the canvassing board’s proclamation within which to file in court his
motion of contest. He is within the time if he files it on the last day
of the two weeks. The whole of the two weeks may be required in order
to make the necessary investigations, to reach the capital of the
province, employ counsel, and prepare and file the motion. The motion
in the instant case having been filed on the last day, there remained
only six days to notify the contestees, if the twenty days began to run
on the 8th. It is practically impossible to reach some of the
municipalities from the provincial capitals in six days. It would be
going too far to hold that the Legislature,after conferring a right
upon a citizen, made the exercise of it impossible. That the
Legislature did not intend to do such a thing appears from the wording
of the statute, which provides, as above indicated, that “all
(judicial) proceedings” must be upon the motion, with notice of not to
exceed twenty days. We, therefore, see no reason for reversing our
former holding to the effect that the court acquired jurisdiction of
the contestees, Sena and Martinez, by virtue of the notices served
-upon them at the times stated.

The question whether all the candidates voted for were notified of
the motion of contest is one of fact which the trial court did not
decide. We have frequently held in cases of this character that where a
dispute arises in the Court of First Instance as to whether certain
persons, who receive a few votes, were in fact candidates for that
particular office, must be determined from the evidence which the
parties may offer. The petitioner must be given an opportunity to
prove, if he can, that the other parties were not candidates for the
office of president of Pagbilao. The trial court is the proper place
for the determination of this question.

For the foregoing reasons, it is hereby ordered that a writ of
mandamus issue to the respondent judge, directing him to reinstate the
contest and to proceed with the hearing thereof in accordance with this
opinion, with costs against the respondents, Leoncio Sena and Severino
Martinez. So ordered.

Torres, Carson, and Araullo, JJ., concur.

---

Moreland, J., concurring and dissenting:

I agree to the result reached by the court, the return of the case
for further proceedings; but I do not agree to the grounds upon which
the decision is based. The position of the court with regard to the
nature of the motion by which an election contest is begun and heard is
that it is not a motion at all but, in effect, a complaint in an action; and that the contest is to proceed not as upon a motion but as if it was an ordinary action. That this is the position of the court is clear.

The court holds that the motion is not adequate for the purpose in
hand. It is too limited in its scope and the procedure attendant upon
it is not adapted to secure the results desired. With this conception
in the foreground the court proceeds to an interpretation and
construction of the pertinent provisions of the Election Law which
slowly but surely eliminate the motion and substitute the action. It
begins with the statement, harmless in itself, as, broadly speaking, it
is true, that: “It (the motion) serves the purpose of a complaint in an
ordinary civil action.” It then makes the assertion, equally true,
that: “Judicial election contests are, and must necessarily be, what
the term implies—adversary proceedings by which the matters in
controversy may be settled upon issues joined.” From this it proceeds
to a statement, not quite so completely or harmlessly true as the two
previous statements, that: “The ‘motion’ which institutes the contest
is not one of those motions made to the court in ordinary practice by a
party to a case for the purpose of obtaining some rule or order.” The
purpose of the first two statements is to point out the analogy between
the beginning of a proceeding by motion and the beginning of an action
by service of summons so that the fangs of the opposition may be drawn
when the third statement is made, and particularly when the conclusion
at which the court desires to arrive is declared in its final decision.

Having emphasized the elements which the motion and the action have
in common, the court proceeds to touch on those characteristics which
distinguish the motion from the action and to show that those are
precisely the elements which make the motion impossible as a means of
determining an election contest. In other words, the court looks upon
the motion with indulgence so long as it keeps company with the action;
but when it takes a course impossible to the action, the
characteristics which compel it to take that course are viewed askance
and are made the reason for the rejection of the motion and the
acceptance of the action as the only satisfactory means of a resolution
of an election contest. The court holds that the contestant, that is,
the moving party, is not only not required but is not permitted to
accompany his moving papers with a notice to his adversary of the time
when the motion will be presented to the court. The opinion says: “The
words ‘with notice’ refer to the ‘motion’ upon which all the
proceedings are based. To hold that the ‘notice’ is one whereby the
contestant fixes a definite date for the hearing of the contest would
be contrary to the clear intent of the legislature and the established
practice in all civil adversary proceedings wherein important rights
are determined.” The court concludes that “the ‘notice’ must,
therefore, necessarily be a notification of the motion of contest and
serves the purpose of a citation or summons.”

Upon the grounds thus stated the court holds that the election
contest proceeds in courts substantially as an ordinary action. The
complaint (motion) is filed in court as is the complaint in ordinary
actions (Sec. 389, Code Civ. Proc.). A copy is then served upon each of
the respondents as are the summons and complaint in an ordinary action
(Sec. 394, Code Civ. Proc). The respondents then answer. The case is
then brought on for trial, the decision does not say how or when, but
we must -assume the court will continue the analogy to the ordinary
action which it has all along asserted and that the contest will be
brought on for trial as is an ordinary action.

What, then, has the court done in this case? If I am correct, it has
prevented the Legislature from doing what it set out to do; indeed, it
has done precisely what the Legislature said should not be done. It has
ignored the word “motion,” and has proceeded with the application of
the statute exactly as if the word was not found in the Act. It has
changed a motion into an action, moving papers into a summons and
complaint, notice of the motion into a notice of trial and note of
issue, and a hearing on a motion into a trial in an action. All this,
it seems to me, in spite of the provision of section 27 of Act No. 1582
that: “All proceedings under this section shall be upon motion * * * and not upon pleadings or by actions;” and in violation of the spirit of the provision in the same section that:

“All proceedings under this section * * * shall be heard and determined
by the court in the judicial district in which the election was held
regardless of whether said court be at the time holding a regular or
stated term.” A proceeding which was intended by the Legislature to be
summary and short this court has converted by its decision into the
ordinary action in all its essential features.

Let us look for a moment at the reasons offered by the court to sustain its position.

The first reason given is that a motion is inadequate for the end in
view, in that it is not an “adversary proceeding” or one in which
issues can be joined; also that a motion is hot a proceeding in which
“important rights” can be “determined;” and that to determine such
rights in a motion would be “contrary to * * * the established practice
in all civil adversary proceedings wherein important rights are
determined.”

Let us admit these statements to be true and these reasons sound;
and still they prove nothing and get nowhere. Even though a motion has
never before been so used, has not the Legislature power to say that it
shall be so used in election contest? Does the mere fact, if it is a
fact, that “important rights” have never before been determined on a
motion, prohibit or prevent the Legislature from declaring that such
rights shall henceforth be determined on a motion? The question is not
the motion has been, but has the Legislature power to make
the motion cover and include something it never covered or included
before? It would seem to me that no one will deny power to the
Legislature to do this. But if it has such power, the decision of the
court is wrong for the Legislature has, by express and direct words,
made the motion the proceeding by which election contests shall be
determined. It says, Sec. 27 of Act 1582, that “all proceedings” in
election contests “shall be upon motion * * * and not upon pleadings or by action.”
Is this not plain language? Is it not direct language? Is it not strong
language? Is it not conclusive language? Yet does the court follow it?
As I view it, not at all; it says, in effect, that the motion has not
been so used before, that it is not the proper method for the trial of
election contests, and that the Legislature, was wrong when it so acted
and its decree should not be obeyed.

But are the statements of the court concerning the motion true and
are its reasons sound? Let us see. Is it true that a contested motion
is not an “adversary proceeding?” In my judgment, no. All contested
motions are such. Is it true that no issues can be joined or framed in
motion proceedings? I believe not. In all contested motions
issues are joined; otherwise there would be no contest and nothing
presented to the court for determination. Is it true that “important
rights” are not “determined” on motion? In my opinion, no. Whether a
person sentenced to be hanged shall have a new trial may depend on the
result of a motion. Judgments involving thousands of dollars are
suspended,opened, modified, vacated and set aside on motion. Appeals in
actions involving life, liberty, and property are allowed, disallowed
and dismissed on motion. Bail is granted or refused on motion.
Injunctions and attachments are issued and receivers appointed on
motion; and so on indefinitely. Is it true, then, that to permit an
election contest to be decided on a motion “would be contrary to * * *
the established practice in all civil adversary proceedings wherein
important rights are determined?” To my mind, clearly not.

The court has, however, some other reasons for refusing to give the
statute effect. Speaking of that characteristic of a motion which
permits notice of the time of the presentation of the motion to the
court to be served with the motion papers, the court urges as an
argument against allowing the contest to proceed on motion, that “the
date for the hearing of the contest cannot be fixed before the
necessary parties are brought into court and are given an opportunity
to prepare their defense.” If this argument is sound why does it not
apply to a motion for an injunction or the issuance of an attachment or
the appointment of a receiver or for a new trial in a murder case
based on newly discovered evidence, and to an infinitude of other
motions? But the argument is, it seems to me, based on false grounds.
The fact is that the filing and service of the moving papers and the
notice of motion bring the parties into court and they are given the
time elapsing between the service of the motion papers and notice of
motion and the date set for the presentation of the motion to the court
in which “to prepare their defense.” It is in all essential respects
what occurs in the service of a notice of trial, except that, in the
latter case, the parties are already in court in one sense. The fact
that in a motion the moving party serves his “complaint” and “notice of
trial” at the same time does not destroy his opportunity or that of his
adversary to prepare for trial. It is simply a question of time, of
speed; and the evident purpose of the statute regulating election,
contests is to secure quick action—a prompt determination of the
conrtroversy. In the same way, the fact that the respondent may file
and serve his “answer” on the very day set for the presentation of the
motion does not change the essential nature of the answer or of the
proceeding or make the motion impossible. After the parties are in
court questions arising from lack of sufficient notice, surprise,
inability to prepare, pressure of court business preventing instant
consideration, can be settled by the court after hearing the parties
and consulting its own convenience. All essential rights are preserved
and guarded as fully when the proceeding is by motion as when by
action. Nothing is changed except time. Nothing is obliterated except
formality, which can always yield to necessity.

The court continues the argument against allowing an election
contest to proceed by motion instead of by action, as follows: “And
furthermore, the fixing of the date for the hearing of the contest in
the ‘notice’ would, in many instances, be a useless procedure because
the judge of the district might then be holding court in some other
part of the province or subprovince, or in an entirely different
province, as in the instant case, where section 5 of Act No. 2347
requires that the terms of court for the Fourteenth District shall be
as follows: ‘At Lucena on the first Tuesday of January, July and
November, and at Boac, subprovince of Marinduque, on the second Tuesday
of March and August.’ Notwithstanding the fact that the court is
required to hear and determine the contest in the judicial district in
which the election was held regardless of whether it be at the time
holding a regular or stated term, yet no one will contend that the
judge must adjourn court in the province or subprovince and go to
another for the sole purpose of hearing a municipal election contest on
a date fixed by one of the parties. The creation of such a condition of
affairs can not be attributed to the Legislature. The ‘notice’ must,
therefore, necessarily be a notification of the motion of test and
serves the purpose of a citation or summons.”

This argument, it seems to me, involves several misconceptions both
of law and fact and some confusion as to procedure and the manner of
bringing on cases for hearing in Courts of First Instance. So far as I
can see there can be no reason for asserting that, because a certain
judicial district may comprise two provinces, it would be useless to
serve the notice of motion with the moving papers. What possible
connection is there or can there be between service of a notice of
motion and the fact that a judicial district contains more than one
province? Why should it “be a useless procedure” to serve a notice of
the hearing of the motion with the motion papers “because the judge of
the district might be holding court in some other province?” Suppose he
is; cannot the moving party notice the motion anywhere in the judicial district?
Section 27 provides expressly that he may. The fact that a contest
occurs in a town in Marinduque does not prevent the trial of the
contest in Batangas, the two provinces constituting one judicial
district. Indeed, the purpose of the election law might well require it
if circumstances demand the prompt resolution of the contest. A contest
arising in Batangas in June would not have to be delayed till December,
when it could be tried in Marinduque in August. Moreover, the contest
may be heard at a special term of the court; and it would be
well within the power of the court to suspend, and the public interests
might demand it, a regular term of court in Batangas for a few days to
hear an election contest in Marinduque.

The argument here offered by the court could be offered as
effectively against the service of a notice of trial in an ordinary
action. The two-province argument, and the argument that the “judge of
the district might then be holding court in some other part of the
province or subprovince,” apply equally well to ordinary actions.

I cannot conclude this discussion of the argument of the court
without adverting particularly to this statement found in the quotation
from the court’s opinion above set out: “Notwithstanding the fact that
the court i& required to hear and determine the contest in the
judicial district in which the election was held regardless of whether
it be at the time holding a regular or stated term, yet no one will
contend that the judge must adjourn court in the province or
subprovince and go to another for the sole purpose of hearing a
municipal election contest on a date fixed by one of the parties. The
creation of such a condition of affairs cannot be attributed to the
Legislature.” Just what “condition of affairs” is it that the court
refers to here which cannot be “attributed to the Legislature?” Is it
the fact that two provinces are put in one judicial district? But the
Legislature indisputably did that. Is it the fact that the contest may
arise in one part of the province while “the judge of the district
might be holding court in some other part of the province?” But the
Legislature as indisputably did that by providing that Courts of First
Instance shall hold court only in the capital of the province, thus
making it necessary that every case, of whatever nature,
arising Outside of the capital, go to the capital to be heard. What
argument can be deduced why this provision should not apply to election
contest? Is “such a condition of affairs” due to the fact that, at the
time the contest should be heard, the court might be holding a regular
term of court in another province and that “he must adjourn court in
the province or subprovince and go to another for the sole purpose of
hearing a municipal election contest?” This condition, it seems to me,
is essentially a creation of the imagination. There is nothing
requiring the assumption that a court must adjourn court in one place
and convene a session in another at the nod of a party to an election
contest. If at the time the motion must be noticed for hearing the
court is holding either a regular or special term in a province other
than that in which the contest arises, but in the same judicial
district, the moving party may notice the motion for the term then
being held in the other province. If there are practical reasons why
the hearing should be held in the province in which the contest arose
the parties may agree or the court may require that the contest be
heard in the province where it arose either at a regular or special
term to be fixed by the court and held at a time convenient for the
parties and conformable to the public interest. A careful practitioner
would, if necessary, consult the court before noticing his motion and
endeavor to make such arrangements as to the time and place of hearing
as were agreeable to all parties interested.

But, at the most, these are questions of mere convenience, the settlement of which does not require the conversion of a motion
into an action or justify the virtual repeal of an act of the
Legislature which controls the subject in a direct, clear, and
specified manner; for, to change a motion into an action under a
statute which provides, as does sec. 27 of Act No. 1582, that election
contests “shall be upon motion * * * and not upon pleadings or by action,” is to repeal the statute in effect.

It would seem that the court, when it made the argument of
convenience and asserted that it would be impossible for a notice of
motion to be served with the moving papers and that, for that reason
among others, the motion was impossible in election contests and that
they must, as a necessary consequence, proceed by action, overlooked
several important provisions of statute. Under Act No. 2347 the Court
of First Instance of every judicial district is open for the trial of
cases substantially every working day of the year (sec. 5). No cause
need wait for lack of a court in which to be heard. While some causes
must wait on others of necessity, as not all can be heard at once, that
does not mean that an election contest cannot be heard as’ a motion but
must proceed substantially as an ordinary action. It does not mean that
the notice of motion cannot be served with the moving papers as the
court argues. It means the precise contrary. If courts are open the
year around there can be no difficulty in noticing a contest for a
hearing at any time.

It would seem that the court has overlooked also that provision of
the election law under which this court has held election contests to
be preferred causes which are, therefore, entitled to be
heard in advance of the ordinary case (sec. 27, Act No. 1582, as
amended). If this be so, why cannot the motion be noticed for any day?
The case is a preferred one and the statute declares that it “shall be
heard and determined by the court in the judicial district (not province) in which the election was held regardless of whether said court be at the time holding a regular or stated term;”
and that “the contest shall be filed with the court within two weeks
after the election and shall be decided by the same as soon as possible
after the hearing of the contests” (sec. 27, Act No. 1582, as amended).
The
court seems to have confused the noticing of the motion with
the fixing of a specific date for a hearing. The two are synonymous
only when the convenience of the court permits it. The notice of motion
states when the motion will be presented to the court not when the court will hear
it. It will be heard on the date mentioned in the notice of motion or,
if not on that day, “as soon thereafter as counsel can be heard,” that
is, the court will, if circumstances require, set the hearing for a
later day.

The court has also overlooked another provision of the election law
which, in my opinion, is quite decisive of the matter in hand if
language is to have meaning. Section 27of Act No. 1582, as amended,
provides, as we have seen, that “all proceedings under this section
shall be upon motion with notice of not to exceed twenty days to all candidates voted for * * *.” The motion mentioned in the statute is a motion with notice.
There is no necessary interim between the motion and the notice. The
statute marches rapidly. The contest must be filed within two weeks.
Notice of motion must be served with the moving papers. The notice to
the respondents cannot exceed twenty days. It may be only one day; but in no event can it exceed
twenty. The purpose of the statute is clear—the prompt determination of
the contest. Now, if the contest may be considered as a complaint in an
action, and the notice of motion a notice of trial and note of issue
combined, we can readily see how the intention of the Legislature will
be frustrated. The case will proceed as an ordinary action with the
delays which may accompany that most formal of all court proceedings.

The court saw, of course, this difficulty and sought to overcome it
in what is to me a strange way. It must be remembered that the court
destroys the motion and with it the notice of motion which is served
with the moving papers and substitutes in its place what it still calls
a “motion of contest” but which it says is in all essential respects a
complaint in an action. From this it results that the contest, which
must be filed within two weeks after election, is not what the statute
expressly makes it, the moving papers in a motion, but a complaint
which must be served not as a notice of motion but as complaint. Time
must, as the court admits, be given, therefore, to answer or demur and,
after the case is at issue, it must be noticed for trial in the regular
way. This procedure, of course, follows that in actions and the
expedition which is one of the prime objects of the Election Law is
lost. To remedy this the court does the strange thing to which I have
already adverted. It holds that the contest, i. e., the complaint, must be served on all of the respondents within twenty days from the filing of the contest in the Court of First Instance.
It justifies its conclusion by citing that provision of section 27,
already so often referred to, which declares that “all proceedings
under this section shall be upon motion with notice of not to exceed twenty days to all candidates voted for
* * *.” This provision of the court is construed to be a limitation
upon the contestant of the same nature as the limitation of two weeks
within which the contest must be filed, with the result that, if
service of the contest, i. e.,the complaint, is not made within that time
on all the persons voted for, the court is without authority to proceed
and the contest must be dismissed for lack of jurisdiction. This
construction is incomprehensible to me. It is entirely clear to me that
the notice of not to exceed twenty days is a privilege extended or
right granted to the person served which gives him his opportunity to
prepare. It is not a limitation on the contestant but a privilege to
the contestee. It is true that it limits the length of the notice to
twenty days; but that limitation applies to the respondent and not to
the contestant. In other words, the provision does not require the contestant to serve within not to exceed twenty days, but, rather, requires the respondent to answer
within not to exceed twenty days. It is no more a limitation on the
contestant’s time to serve than is the requirement in the ordinary
summons that the defendant appear and answer within twenty days a
limitation on plaintiff’s time to serve the summons. The provision
under consideration simply means that when the contestant gives notice to the respondent it shall not exceed twenty days; but it does not mean that he must
give notice within twenty days after filing his contest on pain of
dismissal of his contest. A rule or statute to the effect that a motion
may be made to a court on a notice of ten days to the adverse party
states a perfectly plain requirement thoroughly understood by every
court and lawyer. The election law says that a motion can be made to a
court on not to exceed twenty days notice to the adverse party. Is this
not equally plain? And can it be held to be statute of limitations
affecting the moving party? To hold that the provision of section 27
above quoted requires the contestant to serve his contest on the other
persons voted for within twenty days after he files his contest on pain
of having his contest dismissed, is, it seems to me, a perversion of
the plainest language.

I believe, also, that the court is confused as to when and how the
court acquires jurisdiction of the subject-matter in an election
contest. The court says: “The ‘motion’ of contest when filed within the
time required by the Acts, gives the court jurisdiction of the
subject-matter of the proceedings, provided the necessary
jurisdictional facts are alleged.” In the discussion of this statement,
it must be remembered that this court has heretofore held many times
that the words “contest/* “motion,” “motion-contest,” and “motion of
contest,” as used in the Election Law and by courts and lawyers, are
synonymous; and that it is the practice of the bar to denominate the
contest a “motion-contest.” It must also be remembered that this is the
first decision to divorce the motion and the notice of motion and to
hold that a motion can exist effectively and proceed as such without a
notice of motion and be treated the same in all essential respects as a
complaint in an ordinary action. It should also be kept in mind that
this decision holds that the contest must be filed and served and the
respondent must answer before any notice can be served on him advising
him of the contestant’s intention or requiring him to appear or answer.
Keeping these things in mind, let us return to the quotation. How does
the filing of the “motion of contest” give the court jurisdiction of
anything? Merely filing a statement of facts with a clerk of a court
means nothing. Before jurisdiction over a given action or proceeding can be acquired such action or proceeding must be begun in the manner provided by law. It is the beginning of an action or proceeding which confers jurisdiction. An election contest is not begun
by filing the contest (moving papers or complaint) with the court; but
“upon motion with notice of not to exceed twenty days to all candidates
voted for.” The proceeding is not commenced until the statute has been
complied with in every essential particular; and this court has
held again and again that failure to notify any one of the “candidates
voted for” prevents the jurisdiction of the court from attaching even
as to those actually served and the contest must be dismissed as to all
as there is no power in the court to proceed. The mere filing of
the contest, therefore, signifies nothing so far as the beginning of
the proceeding and the jurisdiction of the court are concerned.
Nevertheless, the court holds inthis case that this is the act which
begins the contest and confers jurisdiction of the subject-matter. This
must be so for, inasmuch as jurisdiction does not attach in a
particular action or proceeding until that action or proceeding has
been commenced, it must follow that the court holds that the filing of the contest is the commencement
of the contest. This conclusion is in Conflict with the prior decisions
of this court already referred to which hold uniformly that
jurisdiction does not attach until all the candidates voted for are
served as required by the statute. It is true that Courts of First
Instance have jurisdiction by statute over election contests; but this
does not mean that a particular Court of First Instance has by virtue of the statute jurisdiction over a particular contest. That is acquired only by virtue of beginning a particular contest in a particular court in the manner prescribed by the statute. There is no contest until one is begun; and until there is a contest no court can have jurisdiction over it.

I believe, also, that there is confusion in the mind of the court
when it discusses the jurisdiction of the Court of First Instance over
the person. After stating the manner in which jurisdiction over the
subject-matter is conferred on the court, the opinion of the court
continues: “The latter (jurisdiction of the person) can only be
acquired by giving the candidates due and timely notice of the motion
of contest.” Later in the opinion we find this: “The ‘notice’ must,
therefore, necessarily be a notification of the motion of contest and
serves the purpose of a citation or summons. When the motion is filed
and the notice is thus given, the contest is then in court * * *.” What
is this notice, its nature and character, and where is authority for it
found in the law? In the short space of the sentences quoted the court,
intending to refer and evidently thinking it did refer to the same
notice, has described two separate and distinct notices
instead of one, each being of a nature and having a purpose wholly
different from the other. “A notification of the motion of contest” is
a different thing from “a citation or summons,” particularly when, as
the court holds, no day can be set for the presentation of the
motion, nor can the respondent be commanded to do anything by such
notice, nor can he suffer anything by a refusalto heed it. “A notification of the motion of contest” does not notify the adverse party of what the contestant proposes to do, of when
he proposes to do it, nor does it command or require or notify the
respondent that he does something either within or without a specified
time on pain of beingin default or of loss of rights. “A notification
of a motion of contest,” therefore, consists simply of a statement of
the contestant to the respondent something like this: “Please take
notice that I have this day filed with the court of First Instance of
the _________th. judicial district an election contest with a copy of
which you are herewith served.” Such a notice means nothing to the
person on whom it is served, places on him no obligation to act,
produces no effect as to his rights, and leaves the contest right where
it was before the notice was served. It is impossible to conceive that
such a notice “serves the purpose of a citation or summons.” Every
citation or summons commands or requires the person to whom it is
directed to do something, and to do that something within a time specified in the process on pain of being declared in default.
The “notification of the motion of contest” does none of these things.
What duty does such a notice lay on the adverse party? What is there in
it which he must obey? What will or can be done to him or to his rights
if he pays no attention to it ? If upon such a notice any action should
be taken prejudicial to his rights such action would be void as having
been taken without due process of law. A summons requires the defendant
“to appear or answer within twenty days, etc.” and states that, on failure to do so, “judgment will be taken by default for the relief demanded in the complaint,”
A “citation” is in all essential respects the same. Does either of them
bear the slightest resemblance to the “notification of the motion of
contest” created by the court and heralded by it as the process by
which the respondent is “brought into court ?”

Speaking further of the notice the court says: “When the motion is filed and the notice thus given, the contest is then in court * * *.” But where is the respondent?
Is he “in court?” If so how did he get there? Who brought him in ? It
means little to say that the contest is in court. The question is: Is
the respondent in court? Could a judgment by default be legally taken
against him under the notice which the court says he shall have?
Certainly not. He is not in court and a thousand notices of that sort
could not bring him in.

All this confusion, misapprehension, and error is brought about by
holding that an election contest must proceed by action instead of by
motion; by a refusal to follow the statute when it said, and these
words cannot be quoted too often, “all proceedings under this section
shall be upon motion * * * and not upon pleadings or by action.” (Sec. 27, Act No. 1582, as amended.)

The procedure by motion is very simple and effective. The motion
(contest), that is, the moving papers, are filed. They are immediately
served by copy on the persons receiving votes for the office contested together with a notice stating when the motion will be presented to the court.
Under the procedure in motions this is notice to the party that, if he
does not appear on the day set the motion will proceed without him and
that the contestant will, if he shows himself entitled thereto, obtain
the relief sought in his moving papers. This notice gives the court
power to proceed when its service is duly proved. This and not that
described by the court is the notice which takes on some of the
characteristics of a summons. It calls the respondent to appear and
show cause or to answer on or before a certain day and tells him what
the consequences will be if he does not do so.

Finally, I think the court has overlooked this very important feature of an election contest: It is, in real sense, a continuation of the election—at least of that part of the election which begins immediately on the closing of the polls.
It is a continuation of the count It must not be forgotten that, in
election contests, the Court of First Instance is, in a very real and
important sense, an election official and not a court in the broad
acceptation of the term. That this is so is shown by the fact that this
court has held that the election law declaring that the judgments of
Courts of First Instance in election contest are final and unappealable
is not in violation of the Act of Congress of July 1, 1902, giving
appeals to this court from all judgments of Courts of First
Instance in civil cases. On the other hand, this court has also held
that a statute prohibiting appeals to this court from final judgments
of Courts of First Instance in cases originating in justices’ courts
was void and of no effect as it was in violation of said Act of
Congress giving appeals from all judgments of Courts of First
Instance in civil cases. The ultimate basis of the decision holding the
statute valid which prohibited appeals in election cases must be that
stated in my concurring opinion in that case, namely, that the rights
passed upon by a Court of First Instance in election cases do not
belong to that class of rights which the Act of Congress of July 1,
1902, protected and safeguarded by providing for appeals to this court
in actions wherein they were adjudicated; but that the method of
adjudicating that class of rights was left to the local Legislature and
that the courts were bound by its decrees. That this is so is evident
from the fact that the Act of Congress granting the right of appeal to
this court from the judgments of Courts of First Instance in all
civil cases must be held to have referred to and covered not only the
judgments which Courts of First Instance could then pronounce, but all
judgments which they might, by future legislation, be authorized to
pronounce, so long as, in pronouncing those judgments, they were acting as courts in strict sense. In election contests Courts of First Instance are not acting wholly as courts, but, in some aspects, as election officials.
They are not dealing with that class of rights with which they were
dealing at the time the Act of Congress was passed. The Collector of
Customs administers the Chinese Exclusion Acts. If his powers and
duties in that regard were turned over to the Court of First Instance
of Manila, could it be successfully maintained that an order of that
court denying the application of a Chinese alien for permission to
enter the country would be appealable to the Supreme Court under the
Act of Congress of July 1, 1902? No. While it acts as a court in name,
in reality it exercises functions of an administrative officer. Thus,
while in election contests the Court of First Instance acts as a court
in name, and, in fact exercises some judicial functions, nevertheless,
the real character of the part which it plays is administrative. The
duties which the Court of First Instance performs could as well have
been left to a clerk in the executive department or to any other
employee or official of the Government. Such is not the case, however,
with regard to those duties imposed upon the courts by the Act of
Congress of July 1, 1902. None but the court can perform those; and an
attempt of the local Legislature to impose them on a member of another
department of the Government would be futile.

The election contest being a continuation of the election,what more
natural than a motion to bring the election up for review? Why an
action? The proceeding is already in course and there is no need to
begin another. A motion in the same proceeding is far more appropriate
and useful.