JOSE LINO LUNA, PETITIONER AND APPELLANT, VS. EULOGIO RODRIGUEZ, RESPONDENT AND APPELLANT; SERVANDO DE LOS ANGELES, RESPONDENT.

It appears from the record that an election for the office of governor of the
Province of Rizal was held on the 6th day of June, 1916. At said election Jose
Lino Luna, Eulogio Rodriguez and Servando de los Angeles were candidates for
said office. The election was closed, the votes cast in the various
municipalities were counted, and a return was made by the inspectors of said
municipalities to the provincial board of canvassers, who, after a canvass of
said returns, proclaimed the following result:

(a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157;
(c) Servando de los Angeles 3,576 votes; and (d) that Eulogio Rodriguez, having
received a plurality of said votes, was duly elected governor of said
province.

Against said proclamation Jose Lino Luna presented a protest in the Court of
First Instance. Upon said protest issue was joined, hearing was had and a
decision was rendered which was, on appeal, set aside and a new trial ordered.
(Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. Rep., 186.) Complying with
said order, a new trial was had at which the Honorable William E. McMahon,
judge, presided. Additional evidence was adduced. After a consideration of all
of the facts and the evidence adduced at both trials, Judge McMahon reached the
conclusion that the ballots cast for the various candidates were as indicated in
the returns of the inspectors of the various municipalities except those in the
municipality of Taytay and Binangonan. In the municipality of Taytay, Judge
McMahon found from the evidence that 50 ballots cast for Eulogio Rodriguez
should not have been counted for him, and ordered that number of votes deducted
from his total. In the municipality of Binangonan, Judge McMahon found that the
inspectors did not close the polls at 6 o’clock p. m., and that a large number
of persons voted after that time, and directed that the total vote of Eulogio
Rodriguez should be reduced by the number of such votes, without ascertaining
how many had been cast ,for Rodriguez and how many for Luna. By deducting the
said votes in the municipality of Taytay and those cast after six o’clock p. m.
in the municipality of Binangonan, Judge McMahon concluded that Jose Lino Luna
had received a plurality of the legal votes cast at said election and ordered
the provincial board of canvassers to correct its canvass accordingly. From that
conclusion both parties to the contest appealed to this court and made several
assignments of error.

Considering all of said assignments of error, we find that
they present, in fact, but three questions:

(1) What is the effect of holding the polls open after the hour fixed for
closing the election?

(2) What is the effect of assistance rendered by the inspectors of the
election to incapacitated persons, without first requiring of such persons an
oath to the effect that they are incapacitated to prepare their own ballots?

(3) What is the effect of a failure on the part of the authorities to provide
proper voting booths?

With reference to the first question, the law provides that “at all the
elections held under the provisions of this Act the polls shall be open from
seven o’clock in the morning until six o’clock in the afternoon, during which
period not more than one member of the board of inspectors shall be absent at
one time, and then for not to exceed twenty minutes at one time.” (Sec. 21 of
Act No. 1582; sec. 11 of Act No. 2045; sec. 543 of Act No. 2657, and sec. 445 of
Act No. 2711.) Are the provisions with reference to the time of opening and
closing the polls mandatory? It is admitted in the present case that the polls
were not closed at 6 p. m. The record shows that at 6 p. m. a large number of
voters had not yet been able to vote and that, for that reason, an agreement was
made between some of the candidates for office who were present and the board of
inspectors, to the effect that the polls should be kept open in order that such
electors might vote. No objection whatever to that agreement was made by any
person at that time.

One of the reasons why all of the voters of the municipality had not voted
before 6 p. m. was that the board of inspectors failed to have the list of
voters properly prepared at 7 a. m., and therefore but few of the voters were
able to vote before eleven or eleven-thirty in the morning. That failure, on the
part of the board of inspectors, made it impossible for many of the voters of
the municipality of Binangonan to vote before the regular time for the closing
of the polls.

Shall the ballot of an innocent voter, who is prevented, through no fault of
his, from casting the same before 6 p. m. be annulled for the simple reason that
the polls were kept open, after the hour designated by the law, for the purpose
of giving such voter an opportunity to vote?

Experience and observation has taught legislatures and courts that, at the
time of a hotly contested election, the partisan spirit of ingenious and
unscrupulous politicians will lead them beyond the limits of honesty and decency
and by the use of bribery, fraud and intimidation, despoil the purity of the
ballot and defeat the will of the people at the polls. Such experience has led
the legislatures to adopt very stringent rules for the purpose of protecting the
voter in the manner of preparing and casting his ballot to guard the purity of
elections. (Paulino vs. Cailles, 37 Phil. Rep., 825.)

The infinite ingenuity of violent partisan spirit in evading the rules and
regulation of elections and the use of bribery, fraud and intimidation has made
necessary the establishment of elaborate and rigid rules and regulations for the
conduct of elections. The very elaborateness of these rules has resulted in
their frequent violation and the reports of the courts are replete with cases in
which the result of an election has been attacked on the ground that some
provision of the law has not been complied with. Presumably, all the provisions
of the election laws have a purpose and should therefore be observed. (Detroit
vs. Rush, 82 Mich., 532; 10 L. R. A., 171; 9 R. C. L., 1091; Patton vs. Watkins,
131 Ala., 387; 90 Am. State Rep., 43, 72.)

It has been announced in many decisions that the rules and regulations, for
the conduct of elections, are mandatory before the election, but when it is
sought to enforce them after the election they are held to be directory only, if
that is possible, especially where, if they are held to be mandatory, innocent
voters will be deprived of their votes without any fault on their part. (Patton
vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72; Jones vs. State, 153
Ind., 440.)

In the case of Gardiner vs. Romulo (26 Phil. Rep., 521), we held that when
the Election Law does not provide that a departure from a prescribed form will
be fatal and such departure has been due to an honest mistake or
misrepresentation of the Election Law, and such departure has not been used as a
means for fraudulent practices and it is clear that there has been a free and
honest expression of the popular will, the law will be held to be directory and
such departure will be considered a harmless irregularity. However, the
irregularities may be so numerous as not to be attributed to ignorance or honest
mistake, but to a design to defeat the will of the voters or to such careless
disregard of the law as to amount not only to laches but to fraudulent intent.
In such cases, the election officers should be punished, the election should be
declared null and a new election held.

It has been held, therefore, very generally, that the provisions of a statute
as to the manner of conducting the details of an election are not mandatory, but
directory merely, and irregularities, in conducting an election and counting the
votes, not proceeding from any wrongful intent and which deprives no legal voter
of his vote, will not vitiate an election or justify the rejection of the entire
votes of a precinct. (Behrensmeyer vs. Kreitz, 135 111., 591; Hankey vs. Bowman,
82 Minn., 328; Sprague vs. Norway, 31 Cal., 173; Webre vs. Wilton, 29 La. Ann.,
610.)

The purpose of an election is to give the voters a direct participation in
the affairs of their government, either in determining who shall be their public
officials or in deciding some question of public interest; and for that purpose
all of the legal voters should be permitted, unhampered and unmolested, to cast
their ballot. When that is done and no frauds have been committed, the ballots
should be counted and the election should not be declared null. Innocent voters
should not be deprived of their participation in the affairs of their government
for mere irregularities on the part of the election officers, for which they are
in no way responsible. A different rule would make the manner and method of
performing a public duty of greater importance than the duty itself. (Loomis vs.
Jackson, 6 W. Va., 613.)

The errors and irregularities which warrant the rejection of ballots and the
annullment of an election and thus deprive lawful voters of their legal right to
vote, should be such as to fully justify that result. (The People vs. Cook, 8 N.
Y., 67; 59 Am. Dec, 451.) It has been held that even great irregularities on the
part of election officers will not of necessity vitiate an election, where no
fraud is committed or attempted, or no illegal vote was polled and no legal
voter was deprived of his vote. (Morris vs. Vanlaningham, 11 Kan., 269.)

No complaint is made that any fraud was committed nor that any person voted
who had no right to vote, by reason of the fact that the polls were kept open
after the hour fixed by the law. It is admitted that the polls were kept open
after the hour, by the consent of all parties concerned, for the reasons and
purposes above indicated. In view of such facts, should the vote of the innocent
voter be annulled and he thereby deprived of his participation in the affairs of
the government when he was guilty of no illegal act? If the inspectors may, for
one reason or another, prevent the opening of the polls or delay the
commencement of the voting until 11 o’clock in the morning and then close the
polls in the evening so as to prevent all those who desire to vote from voting,
without incurring criminal liability for a violation of the election laws, the
same motives will induce them to delay the opening of the polls until later and
thus prevent any to vote except those whom they desire.

The polls should be opened and closed in strict accord with the provisions of
the law. Voters who do not appear and offer to vote within the hours designated
by the law should not be permitted to vote after the time for closing the polls
has arrived. Upon the other hand, if the voter is prevented, during the voting
hours, from voting, and is not permitted to vote by reason of the failure of the
inspectors to do their duty, then, certainly, in the absence of some fraud,
neither sueh votes nor the entire vote of the precinct should be annulled simply
because some votes were cast after the regular hour. (People vs. Prewett, 124
Cal., 7; Packwood vs. Brownell, 121 Cal., 478; Pickett vs. Russell, 42 Fla.,
116.)

The decisions in the various States of the United States are not uniform upon
the effect of a failure to open and close polls at the time specified by the
law. In some States such a provision has been held to be mandatory, in others
directory. The decisions seem to be based upon the language of the particular
statutes discussed.

We are not inclined to the belief that the legislature intended that a
failure to comply with the law in this jurisdiction should render the entire
election void, nor nullify the votes cast after the period mentioned in the law,
unless the polls were kept open after the hour for the purpose of permitting
some fraud to be committed, or for the purpose of permitting some person to vote
who had not appeared during the regular voting hours.

The section of the law which we are discussing provides that “not more than
one member of the board of inspectors shall be absent at one time and then for
not to exceed twenty minutes at one time.” Suppose that the evidence showed that
two of the inspectors were absent at one time and for a period longer than
twenty minutes, would the courts be justified in holding that the ..entire
election was void, in the absence of fraud, for that reason? There is little
justification for holding that one provision of said section is mandatory and
the other directory.

Our conclusion upon the first question, in view of the foregoing, is that in
the present case there seems to be no justification, under the facts, there
being no fraud committed, for annulling the votes of innocent voters who were
permitted by the election inspectors to cast their votes in a legal manner after
the regular hour for closing the polls. In this conclusion, however, we do not
desire to be understood to have decided that in no case should the courts not
annul and set aside an election, where fraud is clearly proved, for a violation
of the section under discussion. When the polls are kept open after the hour
prescribed by the law for the purpose of defeating the will of the people, such
a violation of the law should result in annulling and setting aside the election
of that precinct. No such facts exist in the present case. It is true, perhaps,
that a number of the votes cast after the hour for closing the polls were
sufficient to change the result of the election, but the result would have been
the same had those same voters been permitted to vote, except for the negligence
of the inspectors, during the regular hours for voting. There seems to be no
more reason for annulling the votes cast, after the hour for closing the
election, than for annulling the election for the reason that the inspectors
failed to provide the means for voting at the time fixed for opening the polls
in the morning.

We are firmly of the opinion that instead of depriving the innocent voters of
their right to participate in the affairs of their government for irregularities
committed by the election inspectors, the latter should be proceeded against in
a criminal action for failure, on their part, to comply with the law and be
punished in accordance with section 29 of Act No. 1592; section 2632 of Act No.
2657 and section 2639 of Act No. 2711.

The various and numerous provisions of the Election Law are adopted to assist
the voters in their participation in the affairs of the government, and not to
defeat that object. When the voters have honestly cast their ballots, the same
should not be nullified simply because the officers appointed, under the law to
direct the election and guard the purity of elections, have not done their duty.
The law provides a remedy, by criminal action, against them. They should be
prosecuted, and the will of the honest voter, as expressed through his ballot,
should be protected and upheld.

It may be noted in this relation that, under the law, the polls are kept open
from 7 a.m. until 6 p. m., or, for a period of eleven hours only. In the
municipality of Binangonan the record shows that there were 375 analfabetos
(illiterate persons) and 164 other voters. The law requires an analfabeto to
take an oath and that the oath shall be filed. Naturally the inspectors require
some time in (a) ascertaining whether or not the voter is in fact an analfabeto;
and (b) in administering, preparing, signing and filing the oath. Suppose one
minute only is allowed for that work. Tiien two inspectors must accompany such a
voter to the booth, there assist him in preparing his ballot and then return to
their position occupied by them as inspectors. We do not think that work could
be accomplished in less than another minute and it would more than likely occupy
nearer two minutes. But admitting that it could be accomplished in one minute,
we have, at least, two minutes occupied by two inspectors for each analfabeto.
There being 375 analfabetos, it would require 750 minutes to vote, or 12 1/2 hours.
If the inspectors had strictly complied with the law, not all of the analfabetos
of said municipality could have voted in the eleven hours provided by the law,
not to say anything of the time necessarily occupied with the 164 other voters
of the municipality who would, at least, occupy one minute each of the time of
the inspectors, or nearly 2 1/2 hours more. With reference to this particular
question of the time necessary for each analfabeto to vote, some of the judges
have estimated that it would take, at least, five minutes of the time of the
inspectors for each analfabeto. (Hontiveros vs. Mobo, R. G. No. 13959, p. 230,
post)

From the foregoing, it was practically an impossibility for all of the voters
of said municipality to have voted in the eleven hours prescribed by the law
even though the polls had been opened promptly at 7 a. m. instead of at nearly
11 a. m. The above time is computed upon the theory that no time whatever is
lost, that the voters arrive one immediately after another and that no time is
lost waiting for the arrival of the voters.

With reference to the second question above presented, the law provides
that:

“A voter otherwise qualified who declares that he can not write, or that from
blindness or other physical disability he is unable to prepare his ballot, may
make an oath to the effect that he is so disabled and the nature of his
disability and that he desires the inspectors to assist him in the preparation
of such ballot. The board shall keep a record of all such oaths taken and file
the same with the municipal secretary with the other records of the board after
the election. Two of the inspectors, each of whom shall belong to a different
political party, shall ascertain the wishes of the voter, and one of them shall
prepare the ballot of the voter in proper form according to his wishes, in the
presence of the other inspector, and out of view of any other person. The
information thus obtained shall be regarded as a privileged communication.”
(Section 12, Act No. 2045; section 550, Act No. 2657; section 453, Act No.
2711.)

Said quoted section provides the method by which a person who cannot prepare
his ballot may be assisted. The conditions are:

(a) That he must make an oath to the effect that he is disabled and the
nature of his disability together with the fact that he desires the inspectors
to assist him in the preparation of his ballot;

(b) That a record of said oath shall be filed with the municipal secretary
with the other records of the board of inspectors after the election; and

(c) When said oath is taken, then two of the inspectors, each of whom shall
belong to different political party, may assist him in the preparation of his
ballot.

In view of said conditions, what shall be the effect of a failure to comply
therewith? Suppose, for example, that the voter is incapacitated; that the board
of inspectors are fully aware of that fact; that they failed to require of him
the oath; that they failed to keep on file the oath taken, or that one inspector
only assisted said voter in the preparation of his ballot, or that two assisted
him which belonged to the same party, shall the ballot of such an incapacitated
person be rejected? Shall all of the votes of the precinct be nullified because
of the failure of the inspectors to comply strictly with the letter of the
law?

We held in the case of Paulino vs. Cailles (R. G. No. 12753, 37 Phil. Rep.,
825) that the ballots of incapacitated persons who voted without taking the oath
or were assisted by one inspector alone, or by two belonging to the same party,
should not be counted if such ballots could be identified. We further held that,
in the absence of fraud, all of the ballots of the precinct should not be
invalidated by the mere fact that the inspectors did not comply with their duty.
Innocent voters should not be deprived of their participation in an election for
a violation of the law for which they were in no way responsible and which they
could not prevent.

The incapacitated persons mentioned in said section above noted are usually
persons who are unable to acquaint themselves with the provisions of the law.
They are, therefore, absolutely dependent upon the advice and counsel of others.
Generally, they have no idea whatever as to the form and requirements in casting
their ballots. Their ignorance, however, does not relieve them from their
responsibility under the law, nor from the effect of their failure to comply
therewith. (Manalo vs. Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R. G.
No. 12382 decided March 15, 1917, not published; Paulino vs. Cailles, R. G. No.
12763, 37 Phil. Rep., 825.)

The law intended that those voters only who are incapacitated in some way
should be assisted. To insure a compliance with the law an oath of incapacity is
required. To prove that only such persons have received assistance, the election
board is required to keep a record of such oath. To guarantee that such voters
should not be imposed upon, the law wisely provided that two inspectors of
different political faith should assist them. Upon the other hand, if the
inspectors have failed or declined to perform a duty or obligation imposed upon
them by the Election Law, they may be punished.

The record shows that in many of the municipalities of the Province of Rizal,
during the election in question, a great many incapacitated persons voted
without taking the oath required and were assisted by one inspector only in the
preparation of their ballots. But, in view of the fact that such ballots have
not been identified they cannot be rejected. The voter cannot be punished. The
remedy is by a criminal action against the inspectors for a failure to comply
with the law. (Section 29, Act No. 1582; section 2632, Act No. 2657; section
2639, Act No. 2711.)

Said section (2632) provides, among other things, that any member of a board
of registration, or board of inspectors, or board of canvassers who willfully
declines or fails to perform any duty or obligation imposed by the Election Law,
shall be punished by imprisonment for not less than one month nor more than one
year, or by a fine of not less than P200 nor more than P500 or both.

With reference to the third question above indicated, relating to what is the
effect of a failure on the part of the authorities to provide proper voting
booths, it may be said that we have held in the case of Gardiner vs. Romulo (26
Phil. Rep., 521) that the requirements of the Election Law providing for the
location of polling stations and the construction of booths and guard rails for
the latter may be departed from in some particulars and yet preserve, in
substantial form, the secrecy which the law requires. But the failure to provide
doors and guard rails for the booths and the placing of the writing shelf so
that it faces the side instead of the rear of the booths are, combined, a fatal
disregard of the law, inasmuch as such an arrangement does not offer, even in
substantial form, the secrecy and seclusion which, according to the purpose and
spirit of the Election Law, is its most mandatory requirement.

Section 9 of Act No. 1582, as amended by section 512 of Act No. 2657 and
section 415 of Act No. 2711, provides that there shall be in each polling place,
during each election, a sufficient number of voting booths, not less than one
for every fifty voters, in the election precinct. Said section further provides
how such voting booths shall be constructed. The purpose of said provisions is
to furnish each voter an opportunity to prepare his ballot in secrecy. Suppose
the board of inspectors does not prepare the voting booth in exactly the form
prescribed by law, what shall be the effect? Suppose, for example, that they
construct a booth less than one meter square as is provided by the law but yet
sufficiently large to enable the voter to enter and to prepare his ballot in
secrecy; or suppose that the door swinging outward to the booth shall extend to
the floor instead of within fifty centimeters of the floor; or suppose that the
shelf upon which the voter shall prepare his ballot shall be less than thirty
centimeters wide, shall the entire election be declared null and void for such
failures when it is admitted and proved, beyond question, that even with such
defects in the fulfillment of the requirements of the election law they were in
fact constructed in a manner which provided the voter a complete opportunity to
prepare his ballot in absolute secrecy? While there is no provision in the law,
relating to the construction of booths, that they shall be constructed in such
manner as to afford the Voter an opportunity to prepare his ballot in secret,
that must be the primary and ultimate object of having the booths constructed in
the manner indicated.

When we held that the law requiring the preparation of the booths in a
particular manner was mandatory, we did not mean to hold that unless they were
prepared in exact conformity with the law, that the election would be nullified.
We simply held that if they were not constructed in a manner which afforded the
voters an opportunity to prepare their ballots in secret, the election would be
declared null and void on that account. If, however, upon the other hand, the
booths were so constructed, even though not in strict accord with the provisions
of the law, as to afford each voter an opportunity to prepare his ballot in
secret, the election should not be declared null and void. Secrecy is the object
of the booth. An opportunity to prepare his ballot in private is the purpose of
the provision. When the booth affords that protection, the purpose of the law is
fulfilled. To hold otherwise—to establish a different rule—would make the manner
of performing a public duty more important than the performance of the duty
itself.

In the present case, while there is some conflict in the evidence, and while
the proof clearly shows that the booths were not constructed in strict
accordance with the provisions of the law, we are of the opinion that a large
preponderance of the evidence shows that the booths were constructed
(defectively perhaps) in a manner which afforded each voter an opportunity to
prepare his ballot in absolute secrecy. That being true, we find no reason for
changing or modifying the conclusion of the lower court.

The defendant-appellant alleges, and attempts to establish the fact, that in
the municipality of San Felipe Nery many irregularities were committed which
should invalidate the election. For example, he alleges the different columns of
the polling list were not properly filled. Even granting that fact, the voter
was in no way responsible. The voter not being responsible, his ballot should
not be nullified on that account. Filling the different columns of the polling
list is a duty imposed upon the election officers. If they fail to perform their
duty they are responsible; and as we have frequently said, the ballots of
innocent voters should not be nullified for a failure on the part of election
officers to perform their duty in accordance with the provisions of the law. The
remedy is a criminal action against the inspectors if they have violated the law
and not to nullify the votes of innocent voters.

The defendant-appellant further alleges that in the municipality of San
Felipe Nery, a number of voters voted who were not residents of said
municipality. That question was presented to the court below, and upon a full
consideration he refused to nullify the election in said municipality upon the
grounds alleged. While it is true that the proof shows that some grave
irregularities were committed by the board of inspectors, we are not persuaded
that the evidence is sufficient to justify this court in nullifying the entire
vote of said municipality. In view of that conclusion, we deem it unnecessary to
discuss the other allegations of the defendant-appellant with reference to the
striking out of certain allegations in his answer.

The lower court, after hearing the evidence and after examining the ballots
cast in the municipality of Taytay, found that 50 ballots which had been counted
for the defendant-appellant should not be counted for him and ordered that the
total vote of the defendant-appellant should be reduced by that number. The
defendant-appellant in fact admits that the said 50 votes should be deducted
from his total vote. In view of that admission of the defendant-appellant, we
deem it unnecessary to discuss the reasons therefor.

Upon the various errors assigned, our conclusions are:

(1) That the total votes cast in the municipality of Binangonan should be
counted for the respective candidates; that for the special reasons given, the
board of inspectors was justified in keeping the polls open after the hour for
closing. But this conclusion must not be interpreted to mean that under other
circumstances and other conditions, where the polls are kept open after the hour
for fraudulent purposes, that such act on the part of the inspectors might not
nullify the entire election (Gardiner vs. Romulo, 26 Phil. Rep., 521) ;

(2) That while it is irregular for the board of inspectors to permit
incapacitated voters to vote without taking the oath and for one inspector only
to assist such voters, yet the ballots of the innocent voters should not be
nullified on that account; that the ballots of such persons only should be
annulled when identified;

(3) That inasmuch as the voting booths in the municipality of Antipolo were
prepared in a manner and form which permitted the voter to prepare his ballot in
absolute secrecy, the vote of that municipality should not be nullified ;
and

(4) That the judgment of the lower court reducing the total vote of the
defendant-appellant by fifty identified fraudulent ballots counted for him, in
the municipality of Taytay, should be affirmed.

As a result of the count of the ballots, cast in the various municipalities
by the provincial board of inspectors, Eulogio Rodriguez received 4,321 votes,
Jose Lino Luna received 4,157 votes and Servando de los Angeles received 3,576
votes. Servando de los Angeles did not protest the election. From all of the
foregoing, the total votes of Eulogio Rodriguez must be reduced by 50 votes,
leaving him a total of 4,271 only, or a clear majority of 114 votes.

Therefore, with the modification herein indicated, the judgment of the lower
court is affirmed as modified, and it is hereby ordered and decreed that the
record be immediately returned to the lower court with direction that a judgment
be entered directing and ordering the provincial board of inspectors to amend
its count accordingly.

It is so ordered, without any finding as to costs.

Arellano, C. J., Torres, Street, Malcolm, and Avanceña,
JJ., concur.