PEDRO C. MONTERO, PROTESTANT AND APPELLANT, VS. PEDRO V. GUERRERO, PROTESTEE AND APPELLEE.

In the elections held in 1955, herein protestant-appellant, Pedro C.
Montero, and protestee-appellee, Pedro V. Guerrero, were among the
candidates for Lieutenant Governor of the subprovince of Aurora,
province of Quezon. Upon a canvass of the returns, Pedro V. Guerrero
was found to have obtained 2,467 votes and was accordingly proclaimed
elected.

Alleging fraud and irregularities in the appreciation of ballots and
counting of votes, Pedro C. Montero, who placed second with a total of
2,232 votes, filed a protest in the Court of First Instance of Quezon,
asking that the election returns from certain precincts be revised.
Upon order of the Court, he presented a bond and a cash deposit to
guarantee the payment of all the costs which might be incurred by
reason of his protest.

In due time, the protestee Pedro V. Guerrero filed his answer with a
counterclaim for damages. The answer also contained a counter-protest,
and for the payment of all the expenses and costs incident thereto he
filed a bond and made a cash deposit.

Thereafter, the returns were recanvassed. In the course of the
proceedings, when only the ballot boxes from a few precincts were to be
examined, the protestee, on July 12, 1956, filed a petition to withdraw
his counter-protest, alleging that the same was no longer necessary,
since whatever be the result of the examination of the remaining
precincts he would still win with a safe majority of 54 votes. Acting
upon the petition, the court granted the same, and after all the
expenses incurred in the counter-protest had been deducted from his
cash deposit, counsel for protestee was allowed to withdraw the balance.

Five days later, or on July 17, 1956, the protestant, stating that
he had lost interest in the prosecution of his protest, filed a
petition asking that the case be dismissed. Granting the petition, the
court in its order of the same date, ordered the dismissal of the case
“with costs to the protestant.”

On September 3, 1956, counsel for protestee filed a “bill of
expenses and costs” in the total amount of P931.45 which is quoted
hereunder as follows:

“EXPENSES
1.	For actual expenses of Protestee in going to Lucena via Cabanatuan City and returning to Baler and for subsistence in Manila and Lucena from December 28 to December 31, 1955 to confer with and hire the services of Atty. Felipe T. Lopez		P250.00
2.	For refund of actual expenses incurred as payment for transportation expenses incurred in bringing the Ballot Boxes of Precinct Nos. 5 and 7, and for fees of Commissioners during revision of said precincts, subject of the Counter-Protest		163.45
3.	For Attorney’s Fees		500.00
COSTS
1.	For filing Answer and Counterclaim		8.00
2.	For appearance of Protestee and his counsel		10.00
			_________
		Total	P931.45″
			_________

In an order dated September 7, 1956, the trial court approved the
bill and ordered the protestant to pay to protesters counsel the amount
of P931.45. Reconsideration of this order having been denied, the
protestant filed the present appeal, contending that the lower court
erred in approving the protestee’s “bill of expenses and costs” for the
various amounts corresponding to the different items mentioned therein.

We agree with protestant-appellant that attorney’s fees and expenses
incurred by protestee-appellee for transportation and subsistence in
employing counsel are not taxable as costs or expenses under section
180 ^[1] of the Revised
Election Code. Election contests are tried and decided by the courts,
and for that reason it has been held that with respect to costs such
contests shall be governed by the Rules of Court. (Belarmino, et al. vs.
Alihan, et al., 105 Phil., 358; 56 Off. Gaz. [45] 6935.) Under section
10 of Rule 131, in an action filed in a Court of First Instance, the
prevailing party may recover the costs provided for in said section
“and no other.” Attorney’s fees^[2]
and travelling expenses and subsistence for employing counsel not being
among those taxable as costs in said section 10, Rule 131 of the Rules
of Court, the same cannot be allowed. Neither can they be justified as
expenses. In the oft-cited case of Belarmino, et al., vs. Alihan, et al., supra,
this Court said that the word “expenses” in election contests “should
mean actual expenses connected with the trial and not expenses that
attorneys and their clients may have incurred in preparing for trial
and in defending their side of the case.” Attorney’s fees and
travelling expenses and subsistence for hiring counsel not being
included in either the word “costs” or the word “expenses” as used in
the statute, the same must, therefore, be disallowed.

The items for bringing the ballot boxes and commissioner’s fees for
the revision of ballots should, likewise, be disallowed. Although they
are proper expenses incidental to an election contest, they were,
however, incurred, as stated in the “bill of expenses and costs”, in
connection with the counter-protest which was withdrawn even before
appellant withdrew his protest. It would have been different had they
been incurred by reason of the protest.

Regarding the items for filing the answer and for attendance of
appellee and that of his attorney, there can be no question that
protestee-appellee is entitled to recover the same, since they are
specifically included in section 10 of Rule 131 as taxable costs. The
argument that the parties should bear their own costs since there was
no “successful party” or “prevailing party”, the protest and
counter-protest having been withdrawn, cannot be sustained. The
election protest was, in the first place, dismissed “with costs to the
protestant”, and protestant did not appeal from this order of
dismissal. In the second place, when the protest was withdrawn and the
case dismissed, only a few more precincts were to be examined, the
result of which would not affect the election. Apparently, it was for
this reason that herein appellant lost interest in the prosecution of
his protest. In effect, therefore, the appellee still won by a majority
of votes.

In view of the foregoing, the order appealed from is modified in the
sense that the items for the transportation and subsistence in
employing counsel, attorney’s fees, and the bringing of ballot boxes
and commissioner’s fees for the revision of ballots “subject of the
counter-protest” in the amounts of P250.00, P500.00 and P163.45,
respectively, are disallowed. So ordered without costs.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., and Barrera JJ., concur.

Padilla, J., took no part.

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^[1] Section 180 of the
Revised Election Code provides: “Before the courts shall take
cognizance of a protest or a counter-protest or admit an appeal, the
party who has filed the pleading or interposed the appeal shall file a
bond with two sureties satisfactory to the court and for such amount as
it may fix, to answer for the payment of all expenses and costs
incidental to said motion or appeal, or shall deposit with the court
cash in lieu of the bond or both as the court may order. * * * In case
the party who has paid the expenses and costs wins, the court shall
assess, levy and collect the same as costs from the losing party.”

^[2] Attorney’s fees are never considered as costs. (Belarmino, et al., vs. Alihan, et al., supra; see also Mendiola vs. Villa, 15 Phil., 131; Vargas vs. Ross, 16 Phil., 665; Osorio vs. Trias, 16 Phil., 511; Tan Ti vs. Alvear, 26 Phil., 566.)