JUAN CAILLES, PETITIONER AND APPELLEE, VS. FELICIANO GOMEZ AND APOLINAR BARBAZA, RESPONDENTS. FELICIANO GOMEZ, APPELLANT.

It appears from the record that at the general
elections held in the Province of Laguna on June 3, 1919, Feliciano
Gomez, Juan Cailles, and Apolinar Barbaza were the only candidates for
the office of provincial governor. On the seventh day of said month the
provincial board, acting as a board of canvassers officially proclaimed
that Feliciano Gomez had received 9,233 votes, Juan Cailles, 9,125, and
Apolinar Barbaza, 2,668, the result, therefore, being that Feliciano
Gomez had been elected to the office of provincial governor.

Juan Cailles filed a motion of protest within two weeks after the
proclamation of the result of the election, and after notice to the
other two candidates voted for, he contested the election of Feliciano
Gomez. The protestant alleges in his protest that in the only precinct
of the municipality of San Pedro and in the two precints of the
municipality of Bay numerous frauds, irregularities and violations of
law were committed and that improper and illegal counts were made there
as well as in the other precincts of the different municipalities of
the province; and he, therefore, prayed that the election of Feliciano
Gomez in the precincts of San Pedro and Bay be annulled, and that the
protestant be declared legally elected to the office of provincial
governor, after making a new count of the votes cast and the correction
of the returns made by the boards of election inspectors of the various
electoral precincts affected. Feliciano Gomez filed an answer
containing various special defenses as well as a counter-protest in
which, for the reasons therein stated, he prayed for the annulment of
the election held in the fifth precinct of the municipality of
Nagcarlan and that the protest be dismissed with costs against the
protestant.

The trial of this case was protracted and beset with numerous
incidents due to the different allegations contained in the protest and
counter-protest. After 562 witnesses had testified in court and
numerous exhibits, appearing in the record, had been filed, the court
rendered judgment on March 18, 1921, declaring that the protestant Juan
Cailles was legally elected provincial governor of Laguna with a
plurality of 8,797 votes against the protestee Feliciano Gomez, who
received 8,568 votes and the other protestee Apolinar Barbaza, who
received 2,668 votes.

From this judgment the respondent Feliciano Gomez duly appealed to this court.

The questions of law raised in the briefs of both parties refer to
the following matters: (1) The power of the court to allow amendments
to the protest or to the answer; (2) probative value of the count made
by the election inspectors; (3) nullity of an election by reason of
irregularities committed thereat; (4) nullity of the vote cast by an
illiterate or incapacitated who failed to take the required oath; and
(5) consideration to be given to the ballots.

We shall dispose of the questions relating to these matters in the order above given.

First question: When should amendments be made to the motion of protest or to the answer?

It appears from the record that the protestant during the trial
asked the court on December 1, 1920, to be allowed to amend his motion
of protest, alleging that in the municipality of Lilio, the ballots of
certain illiterate voters, who did not take the oath of their
incapacity to prepare their ballots, were counted in favor of the
protestee. This motion was denied by the judge who, nevertheless,
stated his opinion that the proposed amendment could be considered as
an amendment to the protestant’s replication to the counter-protest of
the protestee. The motion having been presented anew in the sense
indicated by the court, it was allowed as an amendment to said
replication.

The appellant assigns the action of the court in allowing this amendment as error.

“In the absence of a statute regulating the mode of procedure,
where jurisdiction of an election contest has been obtained by giving
proper notice to the contestee, the court has power in its sound
discretion to permit amendments to pleadings in election contests, and
such discretion is not reviewable on appeal. In some of the states an
amendment may be made under the provisions of the statute applicable to
the amendment of pleadings in civil actions, but in others it is held
that this cannot be done, and that if the election statute does not
provide for amendments the court has no power to allow them, at least
where the proposed amendment is one of substance. Generally, however,
amendments as to form and substance, not introducing new matter, may be
allowed on due application, and statutes authorizing amendments will be
liberally construed in order that the contest may be determined on its
merits. Thus where petitioners have in fact the qualifications required
by statute the failure of the petition so to allege is amendable; and
if the statement of grounds of contest or the response thereto, lacks
the necessary clearness and distinctness of allegation, an amendment is
properly allowable. But the court should not permit an amendment by
striking out a part of the petition which admits material facts, where
the effect of such amendments would be to throw the burden of proving
those facts upon the other party.

“Except in jurisdictions where election contests are governed by
the general rules of chancery practice, the general rule is that the
notice or pleadings cannot be amended so as to introduce new parties,
or new grounds of contest, at least after the time for filing the
original pleading or notice has expired; and this is especially true
where no good reason is given for not presenting the new matter in the
original pleading.” (20 Corpus Juris, p. 234.)

In the order of the court above referred to, it is stated that the
new fact alleged in the amendment to the. protestant’s replication was
unknown to him at the time that he presented his original protest.
Nevertheless, in view of the advanced stage of the proceedings when the
said amendment was filed, we are of the opinion that it was too late to
be properly admitted.

In the case of Arnedo vs. Llorente and Liongson (18 Phil.,
257), this court held that the rules of procedure applicable to
ordinary civil suits are applicable to election protests filed under
section 27 of the former Election Law (now sec. 481 of the
Administrative Code) only when they are not inconsistent with the
provisions of said section or serve the purpose of supplying a need not
provided for in the procedure outlined, in general form, in said
section. But considering the urgent necessity of dispatching this class
of cases in order, as soon as possible, to enforce the will of the
voters, and there being no provision in the election law as to the time
for filing amendments, we are of the opinion that they should be
presented within a reasonable time before the commencement of the
trial, unless special reasons exist for their presentation after trial
has begun.

The appellant alleges that this error of the court has prejudiced
the rights of the protestee, for the reason that the admission of said
amendment resulted in discounting 157 votes from the protestee in
precincts Nos. 1 and 3 of the municipality of Lilio. But such injury
does not exist inasmuch as the votes to which he refers are adjudicated
to the protestee, as will be seen in the solution of the question
relative to the votes of illiterate and incapacitated voters. We,
therefore, conclude that even admitting that the trial court erred in
this respect, such error did not prejudice any substantial right of the
protestee nor did it, in any wise, affect the result of the election in
said municipality of Lilio.

Second question: The probative value of the ballots having been
lost because of the violation of the ballot boxes, what is the best
evidence as to the result of an election in any given precinct?

The appellant alleges that the court erred “in not taking into
consideration the votes cast in favor of the protestee Gomez in the
first precinct of Nagcarlan, as shown by the oral evidences, it being
proved that the ballot boxes had been violated and that the returns are
false and incorrect, and in adjudicating to the protestant Cailles
votes in this precinct not shown to be for him.”

This assignment of error involves a question of fact which must
first be determined, to wit: Whether the election returns of said
precinct are incorrect and ‘false. From what appears in the record the
election in this precinct has not been the object of protest by any of
the parties in their original pleadings. Discussion upon the point
arose only when on November 22, 1920, the, ballot box of this precinct
was opened for the sole purpose of finding the ballot of one Carlos
Vita, in relation to his testimony given at the investigation of the
fifth precinct of Nagcarlan. Then ballots Exhibits 7-15 were found
which purported to be votes cast for different candidates and fifty
other unofficial ballots.

The parties agreed that the box had been tampered with without any
of them participating therein. No evidence has been presented as to the
falsification of the returns of this election precinct. The appellant’s
conclusion that said returns are false is based upon the difference
found by him between the number of persons who registered as electors
and those who cast their votes in relation to the number of votes cast
as shown in the returns. We have carefully considered the election
returns in question together with the tally sheets and the certificate
of the board of inspectors and we are convinced that the returns are
authentic. From the revision we have made of said exhibits, we have
found that two electors were not given registration numbers, while
there are many others who have been given duplicate registration
numbers; and this explains the differences noted by the appellant.
Withal, we must say that the total number of voters who cast their
votes is as appears in the tally sheets and in the partial sums given
by the inspectors to each candidate for the office of governor. These
partial sums give a total of 520 votes cast instead of 515 that appear
in the returns made by the board of inspectors. This slight difference,
however, does not indicate falsity but only an innocent mistake which
very easily may, and should, be corrected, for it is a fundamental rule
in accounting that the sum total depends upon the value of the amounts
added and not vice-versa.

The authenticity of the election returns being thus brought out,
the question of law presented by this assignment of error is: It having
been admitted that the ballot box had been tampered with, what should
prevail in determining the number of votes received by the candidates
for the position of governor in said precinct? The appellant urges that
in this case the result should be determined by the testimony of the
electors who took the stand, and not by the result shown in the return.

In the case of Rhode vs. Steinmetz (25 Colo., 308), the court laid down the following doctrines:

“In an election contest the ballots cast by the
voters is the primary and best evidence of the intention of the voters,
but the burden of proof is on the contestor to show that the ballots
have been preserved in the manner provided by law and have not been
tampered with, and the fact that the ballots have been in the custody
of the proper ofdicers from the time of the canvass to the time of the
recount is only prima facie and not conclusive proof of their integrity.

“In an election contest the rule that as between the ballots and the
canvass of them, the ballots control, has no application where the
ballots have been tampered with. The court must be sure that it has
before it the identical and unaltered ballots deposited by the voters
before they become controlling as against the certificate of the
election officers of the result of the canvass.”

The same doctrine holds in other jurisdictions:

“Where an official count has been made, it is
better evidence of who was elected than the ballots, unless he who
discredits the count shows affirmatively that the ballots have been
preserved with a care which precludes the opportunity of tampering and
all suspicion of change, abstraction or substitution.” (Davenport vs. Olerich, 104 Iowa, 194.)

“The law is well settled that the burden of proof is on the plaintiff,
when he seeks to introduce the ballots to overturn the official count,
to show affirmatively that the ballots have not been tampered with, and
that they are the genuine ballots cast by the voters.” (Fenton vs. Scott, 17 Ore., 189.)

In the case of Coglan vs. Beard (65 Cal., 58), the court said:

“In an action to contest the right of a party to an
office to which he has been declared elected, the returns of the
election boards should be received as prima facie true. In
order to overcome this evidence by a recount of the ballots cast at the
election, the contestant must affirmatively prove that the ballots have
not been tampered with, and that they remained in the same condition as
they were when delivered to the proper .custody by the judges of
election. If it appear to the satisfaction of the court that the
ballots have not been tampered with, it should adopt the result as
shown by the recount, and not as returned by the election board.”

The same doctrine is followed in the case of Tebbe vs. Smith (108 Cal., 101). In the course of the decision the court said (p. 107):

“The principles of law and the rules of evidence
governing cases such as this have been so often declared that a review
of the many authorities is unnecessary. Those curious or interested in
pursuing the subject will find in the reporter’s notes, preceding, many
instructive cases collated by the industry of counsel. Suffice it here
to say that, while the ballots are the best evidence of the manner in
which the electors have voted, being silent witnesses which can neither
err nor lie, they are the best evidence only when their integrity can
be satisfactorily established. One who relies, therefore, upon
overcoming the prima facie correctness of the official
canvass by a resort to the ballots must first show that the ballots, as
presented to the court, are intact and genuine. Where a mode of
preservation is enjoined by the statute proof must be made of a
substantial compliance with the requirements of that mode. But such
requirements are construed as directory merely, the object looked to
being the preservation inviolate of the ballots. If this is established
it would be manifestly unjust to reject them merely because the precise
mode of reaching it had not been followed.

“So, too, when a
substantial compliance with the provisions of the statute has been
shown, the burden of proof shifts to the contestee of establishing
that, notwithstanding this compliance, the ballots have in fact been
tampered with, or that they have been exposed under such circumstances
that a violation of them might have taken place. But this proof is not
made by a naked showing that it was possible for one to have molested
them. The law cannot guard against a mere possibility, and no judgment
of any of its courts is ever rendered upon one.”

The probative value of the result of the return made by the board
of inspectors is a question already settled at various times by the
courts of the United States. In the case of Oakes vs. Finlay (5 Ariz., 390), the following doctrine was laid:

“The returns of an election board, when legally and
properly authenticated, are not only conclusive upon the board of
canvassing officers, but are also prima facie evidence of the
number of votes cast, in a proceeding to contest the election; and the
burden of proof is upon the person who assails the correctness of these
returns.”

In the case of Stafford vs. Sheppard (57 W. Va., 84), the court said:

“Certificates of the result of an election, made by the commissioners at the precincts, are prima facie
evidence of the result of the election. The ballots, if identified as
the same cast, are primary and higher evidence; but, in order to
continue the ballots as controlling evidence, it must appear that they
have been preserved in the manner and by the officers prescribed by the
statute, and that, while in such custody, they have not been changed or
tampered with.”

“Although the general rule,” says McCrary in
his Treatise on Elections, paragraph 474, “is that the ballots
themselves are the best evidence of the number of votes cast, and for
whom cast, yet this rule can have no application to a case where the
ballots have been tampered with after they were deposited in the ballot
box. In such a case the value of the ballots as evidence is almost
totally destroyed, and the returns made by the officers of election
presiding at the polls may become better evidence than the ballots.”
(Andrews vs. Judge of Probate, 74 Mich., 278; Bisbee vs. Finley, 2 Ells., 172.)

In support of his contention the appellant cites that part of the decision in the case of Manalo vs.
Sevilla (24 Phil., 609), regarding the kind of evidence that must be
introduced to prove that a person has been elected to a provincial
office. The Supreme Court held that it should be the certificate or
proclamation of the provincial board of canvassers. If this cannot be
secured, secondary evidence of its contents may be presented. And if
this is not possible, perhaps, under special conditions, the data
furnished by the boards of inspectors of the province might be
admitted, though it would be evidence of the third order. But the court
further adds: “Even then, it is extremely doubtful if such statements
could be accepted.” We are of the opinion that such doctrine is not
applicable to the case at bar. The question here under discussion is:
It being admitted that the ballot boxes have been tampered with, or, in
other words, the ballots having lost their probative vaiue, what is the
best evidence of the result of the election in a particular precinct?

The appellant cites the case of Dayrit vs. San Agustin and
Valdez, 40 Phil., 782, to show his right to prove by means of the
testimony of electors the votes which they had cast. In that case the
court said:

“The right to examine the voters after they have
declared a willingness to testify, when ballot boxes have been tampered
with after the election, is an affirmance and vindication of the
essential principle of the election system— that the will of the
majority of the qualified electors shall determine the right to an
elective office.”

It is evident, according to this doctrine, that when the ballot
boxes have been tampered with, the interested parties in an election
protest may present the voters as witnesses to show how they voted and
thus corroborate the election return.

Indeed, the court in that case of Dayrit vs. San Agustin and Valdez, supra, says:

“Subsequent changes in the ballots should not be
permitted to affect the result of the election in order to destroy the
will of the majority of the qualified electors.”

In the case at bar the fact that subsequent alterations of the
ballots have taken place should not have the effect of affecting the
result of the election, by granting to the testimony of witnesses a
probative value superior to that of the official count made by the
board of election inspectors. In such case, the count made by said
board is the best evidence of the result of the election. We are
therefore of the opinion and so hold that under the circumstances set
forth, surrounding the holding of the election in the first precinct of
Nagcarlan, where the ballot boxes were tampered with and where there
has been fraudulent introduction of ballots, the returns constitute the
best evidence for determining the result of that election, and
consequently the court did not err in abiding by the result contained
in the returns of said precinct.

Third question: Do the irregularities committed at the election
held in the fifth precinct of Nagcarlan justify the annulment of said
election ?

One of the errors assigned by the appellant refers to the failure
of the court to annul the election held in the fifth precinct of
Nagcarlan. We quote the pertinent part of the appealed judgment:

“A couple of days were spent in submitting evidence
with respect to this precinct, due to the numerous irregularities which
are alleged by the protestee to have been committed there during the
day of the election. According to the amended answer, ‘the booths in
the fifth election precinct of Nagcarlan were not arranged and
constructed according to the form required by the law to such an extent
that the secrecy of the ballot was violated; the voters were not
permitted to approach freely the respective polling places; the secrecy
of the right of suffrage was violated, the electioneerers, agents and
adherents of the protestant having personally intervened and seen the
preparation of the ballots of almost all the voters, in order to
compel, as they in fact did compel, numerous electors to vote for the
protestant, who was then in power as chief executive of the province of
Laguna, said electioneerers, agents and followers of the protestant
having electioneered, threatened, forced, and offered within and
outside of the polling places, appointments and concessions of public
favors in exchange for the votes.’ But the court, after hearing and
examining all the evidence upon the matter, finds and declares as
proved, the following only:

“The booths, indeed, were not
the most appropriate, because they consisted of folding screens placed
against the walls of the house that was used as a polling place, and
being folding screens, they opened and closed at the will of the
elector using them. There were times when one or the other of these
screens fell to the floor by reason of the force of the wind or the
carelessness of the voters, thus completely presenting to view the
voter who was inside preparing his ballot, but it is to be presumed
that the inspectors themselves, if not the voters, had again picked up
the screens and put them in their original position.

“Some
of these booths were placed next to a window, and the window opened
into the balcony of the adjoining house. From this balcony the voter
who was voting in the booth could naturally be seen, but no witness has
come to declare that from the contiguous balcony he was able to read or
see what the elector wrote on his ballot. The house used as a polling
place is of very small dimensions, with galvanized iron roof, and the
day of the election was rather hot. Some electors, in order not to
suffer this inconvenience, and others, who were really in a hurry
because they had to bury a deceased, as soon as their turn to vote came
and they were furnished with their corresponding ballots, instead of
entering the booth which was still occupied by a voter, went to-the
window, and, laying down his ballot upon the sill, wrote and filled it
there.

“The inspectors adopted the practice of calling the
voters by groups of eight, and, in order to facilitate voting, ordered
one group of eight to wait near the inspector’s table while the first
eight occupied the respective booths. At the door or stairs there was a
policeman on duty to call the groups of voters, and with orders not to
permit anyone to come up until called; but it happened that at meal
time the policeman abandoned his post and returned at about 2 o’clock
in the afternoon. During this short absence the voters entered the
polling places in disorder, whether called or not, and then at the
waiting place a greater number than that permitted assembled. During
the same hours that the policeman on duty was absent there were persons
under the polling place who were busy electioneering.

“Coming back to the matter of the booths, it appears that they were
situated only a very short distance from each other, and an elector
voting in his booth could see the other elector in the next booth also
busy upon the same object. There is no doubt that the electors who
prepared their ballots on the window could see each other.

“Everything else that appears from the testimony of the witnesses for
the protestee is an exaggeration because they were drafted from, so to
speak, if not taught, in the barrio of Manaol, by Francisco L. Cruz,
agent for the protestee. More than once during the trial of this case
the protestant called the attention of the court complaining against
the conduct of certain agents of the protestee who locked themselves
with the witnesses in the office of the provincial governor and from
there passed directly to the court room upon being called to testify.
The court therefore cannot give full credit to the testimony of these
witnesses.

“Granting for a moment that in this precinct
drunken electors had entered and voted and that at times, on account of
their hurry, two of them entered a booth together and there, seated one
beside the other, prepared their respective ballots, this in connection
with the irregularities hereinbefore found as proven, falls far short
of being a sufficient cause for annulling the election. In this polling
place there was no election or peace officer who electioneered or
forced the electors, or who had even attempted to discover the secret
of the ballot of anyone. Here nobody was prevented from exercising the
right of suffrage, and the will of the voting public was in no wise
defrauded. If indeed some electors have seen the ballots of others,
this was certainly accidental, and was not done with any intent to
prejudice or favor any candidate, much less to defeat the candidacy of
any person in order to assure the triumph of another. All the
irregularities committed were due partly to the defective conditions of
the polling place and the screens, as well as to the remissness of the
police and perhaps to a little negligence on the part of the board of
inspectors. It is not proper to annul the election for this reason
only.”

After a careful review of the evidence, we find that the findings
of fact and of law upon this point in the judgment appealed from are in
accordance with the merits of the case, and we must say that the action
of the trial judge was correct in upholding the validity of that
election. The irregularities observed by the trial judge have in no way
affected the result of the election, nor has it been proven that any
elector has been deprived of his right to vote, nor that the secrecy of
the ballot has been violated.

“Where an election appears to have been fairly and
honestly conducted, it will not be invalidated by mere irregularities
which are not shown to have affected the result, for in the absence of
fraud the courts are disposed to give effect to elections when
possible. And it has even held that gross irregularities not amounting
to fraud do not vitiate an election. Where the legislature declares a
certain irregularity in election procedure to be fatal to the validity
of the returns, the courts will effectuate that command. And the whole
conduct of election officers may, although actual fraud be not
apparent, amount to such gross negligence and such a disregard of their
official duties as to render their return unintelligible or unworthy of
credence. But the power to throw out an entire division is one which
ought to be exercised with the greatest care and only under
circumstances which demonstrate beyond all reasonable doubt that the
disregard of the law has been so fundamental or so persistent and
continuous that it is impossible to distinguish what votes are lawful
and what are unlawful, or to arrive at any certain result whatever, or
where the great body of the voters have been prevented by violence,
intimidation, and threats from exercising their franchise.” (15 Cyc, p.
372 et seq.)

“* * * Irregularities and
noncompliance with constitutional or statutory provisions in the
conduct of an authorized election do not necessarily render the
election void * * *. It is a rule very generally recognized that the
misconduct of election officers, or irregularities on their part, will
not vitiate an election, unless it appears that the result was affected
thereby.” (10 Am. & Eng. Encyc. of Law, pp. 567 and 670.)

“In a contested election case, very little attention should ordinarily
be paid to mere irregularities in the proceedings of the election
officers which do not affect the real merits of the case. Thus, it was
held by the Court of Appeals of New York, in People vs. Cook,
that where the evidence goes only to show an irregularity without
fraudulent intent, and by which nobody is injured, the Court is not
bound even to submit it to the jury as an open question.

“The officers of election may be liable to punishment for a violation
of the directory provision of a statute, yet the people are not to
suffer on account of the default of their agents.” (McCrary on
Elections, pars. 222 and 228.)

We therefore conclude that the trial judge did not err in declaring
that the election held in the fifth precinct of Nagcarlan was valid.

Fourth question: Did the court err in annulling the election in the second precinct of Bay?

Such is the question raised in the 6th assignment of error of the appellant.

The trial judge who decided this protest in the first instance states the following in his decision:

“The second precinct of Bay was installed in an
unsuitable place, in a small palay storehouse and very near the road
leading from Bay to Los Baños, and the booths set up inside were also
unsuitable; they hardly possessed the conditions which the law requires
in order to protect, even in substance, the secrecy of the ballot.

“The board of inspectors that conducted said election was composed of
Messrs. Jovino Villapando, Alejandro Cailao, Claudio de Leon, and
Nicomedes Ramos. The first, who is a member of the Democrata Party, was
the president, the second and third members of said board, were
affiliated with the Nacionalista Party, and the last was the clerk of
the board. The real party affiliation of the clerk is unknown, but he
has strong leanings for the Nacionalista Party.

“During the
voting hours which lasted from 7 in the morning until 6 in the
afternoon the following irregularities were observed: Inspectors Cailao
and De Leon took away from the electors their ballots as they came out
of the booths before depositing them in the boxes, snatched and opened
them to read them, and upon finding that they had voted for Juan
Sumulong for Senator, Juan Cailles for governor and Dalmacio
Dimaculaiigan for municipal president, they tore and threw them into
bits upon the floor near the tables of said inspectors. The voters
naturally protested against such acts, but the inspectors answered them
‘your ballots are marked,’ and then would immediately add: ‘Get other
ballots that are clean and change those that you had, and don’t vote
for Sumulong because he is not from this province, nor for Cailles
because he is old, nor for Dimaculangan because he is rich, you should
vote for Senator Guevara, a native of this province, Feliciano Gomez
who is young, and Julian Carrillo because he is poor.’ The majority of
the electors whose ballots had been snatched away and torn in this
manner left the polling place and did not vote, and only very few took
new ballots again and filled them in the booths and then deposited them
in the box.

“Said inspectors have committed other
illegalities. During the voting hours they entered the booths one by
one, approached the electors and looked at what they were writing upon
their ballots, and would tell them: ‘Vote for Feliciano Gomez for
governor and Julian Carillo for president.’ In a satchel under the
table they had several official ballots already filled which they
delivered to some electors who were going to the booths. Alejandro
Cailao delivered four of them to the protestee Julian Carrillo when the
latter approached the door of the precinct.

“Jovino
Villapando, president of the board, as well as Ramon Santos, a watcher
who was in the polling place, protested against this practice of the
said inspectors, but the latter said: ‘We answer for everything that
may happen.’ The chairman asked that his protest be made to appear of
record; but the other inspectors answered him saying: ‘We will settle
your proposition by vote,’ and Villapando could do no more, as he was
the only representative of the minority against the said inspectors and
the secretary who belonged to the majority.

“On that day
about forty illiterate electors had gone to vote and did vote; and as
they did not take the oath of their illiteracy before being aided in
the preparation of their ballots, the chairman Villapando called the
attention of his comembers to the fact that said illiterates should be
required to take the oath, but the inspectors paid no attention to him,
always telling him as usual: ‘We answer for everything.’ Villapando
protested and asked that his protest against the lack of said oath be
made to appear in the minutes, but his coinspectors challenged him to a
vote, and he necessarily had to keep silent.

“About 4
o’clock in the afternoon, outside of the election precinct, but in a
place rather near, as it was the place where the electors, before being
called to the polling place, used to gather, one Francisco L. Cruz, an
active agent of the Nacionalista Party was there and he would call the
electors and would electioneer them in order that they should vote for
Feliciano Gomez and Julian Carrillo, and to this effect he gave them
official ballots already filled. The elector Emilio Dictado, who
happened to pass by that place on his way to the precinct, met
Francisco L. Cruz and the latter took from his pocket an official
ballot already prepared and delivered it to Dictado with instructions
that, upon entering in the precinct in order to vote, he should deposit
it in the box and in turn, upon leaving the place, he should take with
him for Cruz the ballot which the inspectors would give him. Emilio
Dictado received the ballot from Cruz, entered the polling place; asked
for an official ballot from the inspectors, filled it with the names of
hia candidates, doubled it and deposited in the box, but kept that
which Francisco L. Cruz had given him and, upon leaving the polling
place, went directly to the house of the protestant in the municipal
election protest Dalmacio Dimar culaiigan, his candidate and relative,
and delivered to him the ballot which Cruz gave him and related all the
talk he had with the latter. The ballot in question was exhibited
during the trial and was marked Exhibit K.

“The parts of the
ballots, which the inspectors Cailao and De Leon had torn, were picked
up in a place near the. polling place after the day of the election and
have now been presented in evidence as Exhibits G and H in order to
show that they are ballots in which Juan Cailles and Dalmacio
Dimaculangan were voted for governor and municipal president,
respectively, and that they are forty-seven in number. Other fragments
were taken up by Agustin Villapando, but were not presented in evidence.

“The day following the election and shortly after mid-day one Valentin
Punsal, who was then municipal secretary of Bay, went to the election
precinct where he found the chairman and the members of the board
apparently taking a rest, for they were not doing anything, and he told
them: ‘Finish your work quickly.’ Punsal, forthwith, took from Jovino
Villapando the key of the boxes and, opening the same poured their
contents, looked for the marked ballots and mixed them with the clean
ones. The witness Pedro Villapando, page 155, fourth part of the
stenographic notes, declaring upon this point and referring to Valentin
Punsal, states the following: ‘He poured over the table the contents of
the box which contained more ballots. He also opened the box which
contained the useless and marked ballots. After having emptied the two
boxes, the unmarked ballots were put on one side and the ballots said
to be marked on another side. After this he gathered the ballots said
to be marked and mixed them with the unmarked votes, but those ballots
were not marked; after that the secretary separated those ballots by
bundles, tied them with rubber bands and then placed them in the box
destined for valid ballots. Ballots said to be marked, only about 7 or
8, were taken out and put in the box for void ballots. After that I
left and went home to rest, and the inspectors remained there taking
their rest doing nothing but chatting and laughing.’

“Finally, after the voting had been finished, and before proceeding
with the count of the votes, the election inspectors counted the
ballots, and the result was that 57 ballots were lacking, that is, 2 of
the ballots used and 55 of the official ballots which were not used. In
the lists of this precinct it appears that the inspectors did not
record the numerical order of voting. The statements of the result of
the election were not drafted nor written in the election precinct but
out of it—in the municipal building where inspectors Cailao and De Leon
took the ballot boxes, and there prepared the statement in the absence
of the chairman Jovino Villapando.

“In view of the facts
proved which have just been stated, the court has no other recourse but
to annul the municipal election in the second precinct of Bay. There
the secrecy of the votes was not duly protected but was, on the
contrary, violated. The booths had no doors, and the inspectors went
inside the booths in order to do electioneering work and read what the
elector was writing. The booths were placed almost jointly with the
wall of the storehouse, t>ut in these walls there were many
crevices, as they were made of bamboo splits, and from the outside any
person, who approached the polling place, could see through them the
elector who was voting inside the booths. The will of many electors was
defrauded because they were not allowed freely to vote by writing the
names of the candidates chosen by them, but the ballot was given to
them already filled or prepared. Coercion was practiced upon many
electors by snatching away from them their ballots against their will
and tearing them into pieces after reading them. Many of the same
electors, who were offended with this practice indignantly left for
their homes instead of asking for new ballots in order to vote again,
and thus they were prevented from voting. One of these electors,
testifying as a witness, says: ‘Why ask for a new ballot if after
filling it they would again tear it into bits.’ There, electioneering
was permitted within the booths, and the greatest disregard of the law
was shown, the inspectors refusing to administer the oath to the
illiterates, although their attention was called to its necessity, and
the same inspectors also refused with the greatest cynism, to record
any kind of protest against those illegal proceedings. There, in the
view of the voters and watchers, and with unsurpassed shamelessness,
official ballots were being delivered for the use of a particular
candidate. And, lastly, there, the provisions of the law with respect
to the mode of conducting an election, of keeping the registration
lists, and preparing the certificates of election have been totally
ignored; there, one person was even permitted, after the ballot boxes
were locked with key, to open them and tamper with the ballots by
mixing them together.

“By reason of these series of frauds
and illegalities, it is impossible now to determine what is the true
result of the election. The ballots of 40 illiterates who voted were
confused with those of other electors, and it is not now possible to
separate them from each other, because they have not been identified.
Although only 47 of them were presented, it is inferred from the
evidence that the ballots torn into pieces amount to at least 60, and
as the greater part of the electors, from whom these 60 ballots were
taken away, refrained from voting because of their disappointment and
indignation, it also becomes impossible to determine how many electors
really voted, and how many did not vote x>n account of the threats
and arbitrary conduct of the inspectors. Neither can we now determine
how many are the votes or ballots, the secrecy of which has been
violated in the booths by the inspectors Cailao and De Leon; and much
less can we determine how many official ballots, which the leader
Francisco L. Cruz had in his pocket already prepared, he was able to
introduce from the outside into the ballot boxes to substitute, and
falsify the popular will. Neither the certificate nor the contents of
the ballot boxes offer any guaranty whatsoever. The first were prepared
outside of the polling place and, in the absence of the chairman, the
contents of the boxes, as already stated, have been tampered with. With
this shameless catalogue of frauds, violations and assaults against the
Election Law, it must necessarily result in the nullity of the
municipal elections of the second precinct of Bay.”

We have attentively examined the evidence before us and we find no
ground sufficient to justify us in altering or modifying the
conclusions of the trial judge. The question we are called upon to
resolve is whether the irregularity committed in the election of the
second precinct of Bay are of such gravity as to justify the solution
adopted by the trial court.

In the case of Manalo vs. Sevilla (24 Phil., 609), this
court annulled the election of the electoral precinct of Jalajala by
reason of the irregularities committed therein, to wit:

“(1) The registry lists were improperly prepared
and signed; (2) not enough voting booths were prepared and furnished;
there should be a booth for every 50 voters and one for a fractional
part thereof; (3) the ballot boxes were not presented to the public for
inspection prior to the opening of the polls as required by law; (4) no
person, aside from the election officials, was permitted inside the
polling place except the person engaged in casting hia ballot; (5)
voters were not permitted freely to approach and enter the polling
place or witness the balloting as required by law; (6) voters and the
public generally were prohibited from approaching the polling place or
entering the same; (7) voters desiring to vote were not permitted to
approach or enter the polling place except in alphabetical order, and
then only singly and as called by the policemen guarding the entrance;
(8) the entrance to the polling place was guarded by officers of the
law under instructions from the election officials to permit no one to
enter except those designated by such officials; (9) the election was
carried on as follows: The chairman of the board of inspectors called
the name of a voter; the name was taken up by the policemen guarding
the door and repeated to the body of voters which was kept waiting
thirty meters from the polling place; the voter whose name was called,
if present, thereupon stepped forward and was permitted to enter the
polling place and vote; after he retired another name was called and
the process repeated; the election in such precinct must be held void
and of no effect.”

In Gardiner vs. Romulo (26 Phil., 521), this court says:

“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 booth 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.

“When the
fraud or intimidation is flagrant and its influence diffusive so that
it becomes impossible to separate the good votes from the bad and
determine the true result of all the good ballots cast, the returns
should be avoided.”

And in Garchitorena vs. Crescini and Imperial (39 Phil., 258), this court maintained the following doctrine:

“Courts, of course, should be slow in nullifying
and setting aside the election in particular municipalities or
precincts. They should not nullify the vote until it is shown that the
irregularities and frauds are so numerous as to show an unmistakable
intention or design to defraud, and which do, in fact, defeat the true
expression of the opinion and wishes of the voters of said municipality
or precinct. The evidence in the present case shows an unmistakable
intention and design on the part, not only of the election inspectors,
but many of the voters, to defeat, by the methods adopted, the true
expression of opinion, through the ballot, of the people of said
municipality. When the election has been conducted so irregularly and
fraudulently that the true result cannot be ascertained, the whole
return must be rejected, The rule is so well established that
authorities need no longer be cited in its support that whenever the
irregularities and frauds are sufficient to defeat the will of the
people of the particular municipality or precinct, the entire vote
should be rejected and those who are guilty of such frauds and
irregularities should be punished to the very limit of the law.”

The evidence shows that the secrecy of the right of suffrage has
been violated in the second precinct of Bay; that the booths were not
constructed in accordance with law; that the inspectors entered the
booths in order to do electioneering and see what the voter was
writing; that the will of many electors has been defrauded, because
they were not allowed to vote freely, but ballots already prepared by
the inspectors or leaders were delivered to them; that coercion has
been exercised upon many electors by the election inspectors who
snatched their ballots, tearing them into pieces after reading them;
that by reason of this practice many of the said offended electors went
to their houses instead of asking for new ballots in order to vote
again; that the illiterate electors were not required to take the
proper oath of their incapacity; that the registration lists and the
election statements were not properly kept; and lastly, that the
municipal secretary, after the ballot boxes had been locked, opened
them and tampered with the ballots, mixing them altogether.

Adhering to the doctrine laid down in the decisions of this court
above cited, we must affirm the resolution of the trial court,
declaring the election of the second precinct of Bay null and void.

Fifth question: Is the resolution of the trial court discounting 30
votes from the protestee and awarding them to the protestant
maintainable? Is it proper to annul the election in the municipality of
San Pedro for irregularities committed during the holding thereof?

The claim of the appellant with respect to the election held in the
municipality of San Pedro is that the 30 votes which the trial judge
discounted from him and adjudicated to the appellee be restored to him.
The latter in turn contends that said election should be annulled
because of the grave irregularities committed at the time it was held.
As to how said election was conducted in the said municipality, we find
in the judgment appealed from the following narration of facts proven:

“During the day of the election the municipal chief
of police Andres Imzon, in combination with the protestee Tiburcio
Morando, who was then municipal president and candidate for reelection
in the same ticket with Mr. Feliciano Gomez, who at the same time was
candidate for provincial governor, and with the majority of the members
of the election board, all of whom are members of the local
Nacionalista Party, taking advantage of the opportunity he had by
reason of his position, assigned to him at the door which leads to the
booths, for the purpose of keeping order, has been committing the
following acts: He went to and from said door to each booth, for the
purpose of seeing, as in fact he did see, what the electors were
writing while preparing their ballots within the booths, and at the
same time in order to influence them to vote for Feliciano Gomez for
governor, and for Tiburcio Morando for municipal president. About 8
o’clock in the morning when one voter was leaving the booth he seized
his ballots, pocketed it and at the same time substituted it with
another already filled and prepared, which the elector received and
deposited in the box. The elector protesting, said: ‘This is not my
ballot;’ but the chief answered him: ‘Yours is incomplete. It lacked
the vote for provincial governor. Immediately afterwards he also seized
the ballots of three electors who were leaving the booths in order to
put them in the boxes and substituted them with others. And shortly
afterwards when three electors entered the booths he met them, took
their blank ballots, substituted them with three others already
prepared and filled, and the said electors being already in their
respective booths acted as if they were writing and afterwards upon
leaving the booths deposited them in the box. This hour of the morning
was highly productive of good results for the chief of police Andres
Imzon, for the witness Jose Almeida declares that during the one half
hour that he was in the precinct, awaiting his turn to vote he saw that
Imzon had succeeded in seizing and substituting ballots in the manner
already indicated in the case of no less than 20 electors. Between 9
and 10 o’clock in the morning he followed two electors, who were
leaving their respective booths in order to deposit their ballots in
the boxes, and upon overtaking them, he took their ballots and
substituted them with two others already filled up, one for each of
them and said to them: ‘These are ballots which you must deposit in the
box,’ At 2 o’clock in the afternoon he approached a booth occupied by
an elector who, after preparing his ballot, did not know how to double
it, and the chief took said ballot, doubled and pocketed it, and in its
place he put an official ballot upon the table of said elector.

‘The activities of Andres Imzon were favored by the place and
arrangement of the booths as well as by the position of the table of
the inspectors and his connivance with them.

“The booths
were installed in a room separated by means of a partition from the
main room occupied by the table of the inspectors, the two rooms not
having any other means of communication but a small door. Said two
rooms were furthermore so situated that the inspectors could not from
their table see the booths, or inform themselves of what was happening
in the room where these booths were. In this separate room there were
eight divisions called booths but in reality were no more than
divisions of the space, formed by thin cloth suspended from above and
perpendicularly extended to the walls; inside each of these divisions
thus formed there was a writing desk, of the kind used by school
children, for the polling place of San Pedro was precisely installed in
the public school building; the elector sat on the table facing an open
window and with his back upon the entrance to the booth, this entrance
having no door or anything that could conceal or cover, at least, the
elector that was within.”

Accepting the preceding narration of facts as the true result of
the evidence of record, it remains for us to determine whether the
resolution of the trial court discounting from the protestee thirty
votes and conceding them to the protestant is maintainable, or whether
it is proper to reject all the votes of this municipality, in view of
the irregularities committed at that election.

It appears clear from the evidence that at the election in question
illegal votes were cast. Of course it cannot be determined exactly how
many ballots were snatched by the policeman Imzon and how many electors
were prevented from expressing their will freely, because the witnesses
who testified upon these points, only gave their best calculation.
There is neither positive proof that the votes discounted necessarily
belonged to the protestant. For this reason, in the absence of a sure
basis, we are of the opinion that the resolution of the trial court
discounting votes from the protestee and conceding them to the
protestant, is untenable. Let us now consider the case in relation to
the irregularities committed at that election.

It is said that the number of useful ballots and of destroyed and
unused ballots is 600, which is the same number delivered by the
municipal secretary to be used at that election, and that the thirty
which, it is alleged, were seized by the chief of police Imzon are not
among said ballots.

The explanation of this phenomenon may be found in the fact that
policeman Imzon had the consent of the majority of the election
inspectors; before the voting he aided them in counting the blank
ballots; and, after the election, he helped them count the ballots that
were piled on the table before the canvass began. If to this we add the
fact that the president of the election board, Jose Morando, after
delivering the boxes to the municipal secretary, retained the keys in
his possession until the clerk of the court required the transmittal to
him of said ballot boxes, with the aggravating circumstance that said
Morando, had, while the boxes were in the municipal building in the
custody of the policeman Imzon, tampered with the ballots, as may be
inferred from the testimony of the municipal secretary, Serafin
Ludovico, is it strange that the number of ballots delivered for the
use of that municipality should be found correct? What object did
Morando have in opening the boxes and tampering with the ballots? In
any event, while the proceedings employed by Imzon and Morando in order
to leave everything well arranged in appearance have not been cleared
in the record, yet, the following facts remain unshaken: That in the.
only election precinct of San Pedro, the booths were not duly
constructed in accordance with the law; that the election inspectors
permitted policeman Imzon to enter the booths in order to influence the
electors and see what they were writing; that on the day of the
election and within the polling place, the same policeman seized the
ballots of various electors, substituting them with others already
prepared to be deposited in the ballot box; that before the count
commenced, the inspectors poured the contents of the box upon a table,
in the absence of the watchers; that the president of the board of
inspectors kept the keys of the ballot boxes in his possession after
the latter had been delivered to the municipal secretary.

If the election of San Pedro did not offer any other difficulty
than the bad arrangement of the booths, so long as the construction
thereof is in accordance with law, an essential requisite for the
secrecy of the election, we would perhaps hesitate to adopt a measure
as severe as that of rejecting the votes of a whole precinct. But the
violation of the secrecy of suffrage and the deprivation of part of the
electorate of their right to elect the public officers are
transcendental matters affecting the purity of the election that we
ought not to sanction it. The record, in our opinion, does not offer
sure means for separating the good votes from the bad ones, and the
impossibility of clearing this state of uncertainty places us in the
hard necessity of having to reject the votes of that precinct. The
courts have frequently announced the rule that when the fraudulent
votes are so mixed with the legitimate votes that it cannot be
determined how many were legal and how many were fraudulent, the
returns of the election should be annulled. (State vs. Fulton, 42 Kan., 164.)

We are aware of the transcendence of our resolution, but, in the
present case we are obliged to adopt it, in the exercise of the power
which is given to this court by section 480 of the Administrative Code,
because we know that it is essential for the life and stability of a
democratic government to preserve, against all kinds of corruption or
coercion, the purity and liberty of suffrage in the election of public
functionaries. We believe it proper to repeat here the ideas expressed
by this court in the case of Gardiner vs. Romulo, supra, when it said:

“We are aware of the seriousness of disfranchising
the innocent electors of a whole precinct for acts done by others. We
are not unmindful of the force of the argument that if courts set aside
the returns from a precinct for light and trifling causes, it will
encourage the unscrupulous to seek profit by the honest mistakes of
election officers committed in the conscientious performance of their
duties. On the other hand we appreciate the importance to the people of
enforcing those statutory provisions which the legislature have
provided to insure a free and undefiled expression of the popular will
at the polls, to the extent that fraud may not flourish under the guise
of honesty. The right of suffrage is of comparatively recent origin in
this country. If at this early stage of its existence, the courts are
to countenance such bold disregard of the law as was exhibited in the
municipality of Camiling at the last general election, representative
government will soon become a farce; a mere catchword or an empty
illusion. Regardless of the political unrest engendered by such
deplorable litigation as the present and its enormous expense to the
contestants, we are of the opinion that a firm stand against fraudulent
elections must now be taken, once for all. If no encouragement is
offered to vicious practices, they will, at least, never grow larger.”

Sixth question: Is the vote of an illiterate or incapacitated person, who fails to take the required oath, valid?

The appellant assigns as an error of the trial court the discount
from the protestee of the votes of illiterates of the first and third
precincts of Lilio, and the failure to annul the votes cast by the
illiterates in the tenth precinct of San Pablo.

As to the question whether the illiterate or incapacitated electors
of said precincts have or have not taken the oath of their incapacity,
it appears from the record, with respect to the tenth precinct of San
Pablo, that the three election inspectors and some voters testified
that the illiterates and incapacitated voters of that precinct did not
take the proper oath of their incapacity while other electors testified
that they did. The registration list was not submitted nor the list of
illiterates or incapacitated voters of this precinct. The court held
that the illiterates and incapacitated voters had taken the proper oath
of their incapacity. In Lilio, in the first and third precincts, the
inspectors and various voters testified that the illiterates and
incapacitated electors took the proper oath of their incapacity, while
other voters testified that they did not. Neither the registration list
nor the list of illiterates was introduced in evidence. The court ruled
that the illiterates and incapacitated voters of said precincts had not
taken the required oath. Consequently in the case of San Pablo the
court considered the votes of illiterates valid and adjudicated them to
the respective candidates. On the other hand, in the case of Lilio, the
court discounted from the contending candidates Cailles and Gomez the
votes of the illiterates.

Upon examining the ballots of the precincts Nos. 1 and 2 of Cavinti
and those of Nos. 1 and 2 of Longos, we have also found ballots of
illiterates which have been discounted by the court from the respective
candidates on the same ground that the said illiterates or
incapacitated voters had cast their votes without having taken the
proper oath.

There is no question as to whether fraud was committed in the
preparation of the ballots of the said illiterates or incapacitated
voters. There is neither any question as to the legal qualifications of
said illiterates to vote. The real question here presented relates to
the validity of the vote of an illiterate or incapacitated voter who
casts his vote without taking the proper oath.

In the case of Manalo vs. Sevilla, supra, this Supreme Court said:

“Under the Election Law an illiterate voter, or
other voter who through physical disability is unable to cast his
ballot without assistance, should be required prior to voting to take
oath as to his illiteracy or disability; and in case no such oath is
taken he should not be permitted to vote. The oath is a condition
precedent to his right to vote.

“To permit voters to receive
assistance in casting their ballots without any evidence as to their
disability would be to open the door, to some extent at least, to
fraud, coercion, and intimidation, and to remove, to some extent, the
secrecy of the ballot.”

In Paulino vs. Cailles (37 Phil., 825), the court declared:

“(1) That the fact that incapacitated-voters had
been permitted to vote without taking the oath did not invalidate the
election, that the election inspectors who permitted incapacitated
voters to vote without taking the oath of office may be prosecuted
criminally; (2) that ballots which are marked before they are cast
should not be counted, that ballots marked after they are cast should
be counted; (3) that voting booths must be constructed so as to afford
the voter an opportunity to prepare his ballot in secret.”

And in Luna vs. Rodriguez (39 Phil., 208), the court held:

“When an incapacitated person offers to vote, the law requires: (a)
That he take an oath to the effect that he is disabled and the nature
of the 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 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 a different political
party may assist him in the preparation of his ballot. The ballot of an
incapacitated person who voted without taking the oath, or was assisted
by one inspector alone, or by two belonging to the same party, should
not be counted if such ballot can be identified. In the absence of
fraud, however, 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 the election for a violation of the law for which they
were in no way responsible. Incapacitated persons 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. It is the duty of the
inspectors to see that the law is complied with by the voter before he
is permitted to vote. If the inspectors violate the law, they should be
punished criminally”

It is a well established doctrine of this court that the innocent
electors should not be deprived of their votes by reason of the
noncompliance by the election officers with the requirements of law as
that which we are now considering. Although the requirement as to the
oath of illiterates and incapacitated voters is mandatory before the
election, nevertheless, it should be considered as directory only after
the election. (Luna vs. Rodriguez, supra.) What is
desired to be understood with this distinction is that if the vote of
an illiterate person is contested before it is deposited in the box, on
the ground that such person did not take any oath, or that he has been
aided in the preparation of his ballot by only one inspector, such vote
should not be admitted; but, after the vote has been deposited in the
box, such an irregularity is not fatal. This court has never declared
an election in a precinct null by reason of a mere irregularity of this
character, without any accompanying proof of fraud.

In the case of Luna vs. Rodriguez, supra, it was
said that the vote of an illiterate or incapacitated person who voted
without the formal requisite of an oath, must be discounted from the
votes deposited, if the ballot may be identified. Nevertheless, it must
be remembered that when the court spoke of rejecting a ballot upon this
or that ground, it undoubtedly took into account that the irregularity
like that now in question was part of a fraudulent plan to frustrate
the free expression of the will of the elector. When there is no
evidence of fraud and it appears clear that the vote actually deposited
expresses the will of the voter, the innocent voter should not be
deprived of his right of suffrage by taking away his vote from the
total number of votes counted. In the case at bar there is no evidence
of fraud, and therefore we declare that the votes of illiterates in the
municipalities of Lilio, Lofigos, and Cavinti are. valid and must be
counted for the respective candidates.

Seventh question; interpretation of the ballots:

The contest between the parties as to the construction of the ballots
turns principally upon the admissibility or inadmissibility of a ballot
by reason of the incorrect spelling of the name of the candidate or by
a mark found on the ballot.

According to the Election Law, section 452 of the Administrative
Code, the voter should write in the corresponding spaces the names of
the persons for whom he desires to vote, and it is illegal to erase any
printed part of the ballot, put any distinctive mark, or intentionally
erase or mutilate the same, or make any mark other than the names of
the candidates voted for.

The ballots we have examined furnish sufficient data that a great
part of the voting mass are not well advanced in the matter of
handwriting, resulting in various errors in the spelling of the names
of the candidates. Many electors moisten with excess the lead of the
pencil which is used in the booths in such a manner that they leave
gross traces that look like erasures. Taking these circumstances into
account, we are of the opinion that the ballots should be read with
reasonable liberality, so that the reading should be in favor of the
will of the elector, rather than in favor of the inefficacy of the
ballot by reason of technical causes.

The conclusions of the court, after examining the ballots in
question, are grouped herein, for the purpose of avoiding repetitions
in passing upon the questioned ballots in each election precinct:

(A) The ballot in which only the initial letters of the Christian
name and the surname of one candidate, or his surname only appears, or
where there are written first, the surname, and then the Christian
name, is valid for said candidate.

(B) The ballots, bearing the Christian name only or the Christian
name and the initial of the surname of one candidate, should be
rejected as insufficient to identify the person voted for.

(C) When the name and surname appear incorrectly written they
should be admitted, whenever they give the same or similar sound, when
read, to that of the true name of the candidate, under the rule
generally known of “idem sonans“

(D) When the spelling of a name is very different from that of the
name of the candidate that it is not possible to determine the will of
the elector, the ballot should be rejected.

(E) When the name appearing upon the ballot is illegible and from
its writing it is impossible to determine the intention of the voter,
the ballot should be rejected.

(F) When there are two names voted for the same position for which
the law authorizes the election of only one person, the ballot should
not be counted in favor of any of those voted for.

(G) When the name of one candidate appears written, in two spaces
of the ballot, it shall be counted in favor of the candidate for the
position with respect to which he has presented his certificate of
candidacy.

(H) When in a given space of the ballot there is a name that is
erased and another clearly written, the ballot is valid for the latter.

(I) The distinguishing mark which the law forbids to be placed in
the ballots is that which the elector may have placed with the
intention of facilitating the means of identifying said ballot, for the
purpose of defeating the secrecy of the suffrage which the law
establishes. As this is a question of fact, it should be resolved with
the ballot itself in view.

(J) If the mark or sign appears to have been accidentally placed,
and it shall be so presumed unless there is evidence to the contrary,
such as a comma or a period, a dash or a hyphen, between the name and
the surname of a candidate, or in another part of the ballot, or if
there are found traces of the letters “t” and “j” etc., or the first
letter or syllable of the name, which the elector abandons in order to
write another name; the perpendicular, parallel, circular, or sinuous
lines which at times are found on the ballots, as if to indicate that
the voter did not attempt to vote for the positions which appear to be
so cancelled, these marks or signs will not be considered as
distinguishing marks. Unless there is evidence to the contrary, the
numbers which are written in order to indicate the number of persons
voted for the position of councillor or the number of the date of the
election such as “3,” “June 3, 1919,” will not be considered as
distinguishing marks. Neither are the ballots invalidated by one or
more circles placed in a space in which the voter failed to vote, for
it is seen that his intention in placing said sign was to indicate his
desistance.

(K) Writing in a particular space the name of a person who is not a
candidate for said position, or failing to fill blank spaces, will not
be considered as distinguishing marks. Neither is it considered as a
distinguishing or identification mark if upon the ballot appear the
name of a woman, names with pet names, nicknames, names of councillors
with the same surnames, or different surnames with the same name, names
with surnames of Chinese ^origin, names of priests, or contemptuous or
exclamatory names.

(L) When the ballot is signed by a voter as is the case with the
ballot G-25 of the first precinct of the municipality of San Pablo
which is signed “A. Dizon,” and the ballot “T,” signed on the back
“Santiago Lasaga,” of the fourth precinct of the municipality of Santa
Cruz, it should be rejected, because the intention of the voter to
identify his ballot is evident.

(LL) When there is an excess of candidates voted for councillor,
the ballot shall not be annulled, and unless there is evidence to the
contrary, the names in excess are not considered as signatures or as
identification marks.

(M) The ballots written with lead pencil or ink, wholly or in part,
will not be considered as marked for the purposes of section 452 of the
Election Law, in the absence of proof of fraudulent intent.

(N) The fact that a ballot is accidentally torn does not annul it.

(O) The big traces of indelible pencils generally used in election
precincts and the impressions of the fingers of the voter in handling
his ballot are not considered distinguishing marks.

(P) The ballots which bear the prefixes: “Mr.,” “Don” “Guinoo,”
“Hon.,” “Dr.” and the suffixes “hijo” (junior), “segundo,” do not
invalidate the ballot.

(Q) The ballots which bear the names of the candidates printed on
slips of paper and pasted in any space of the ballot are considered as
marked.

In conformity with the preceding conclusions, we affirm the
resolutions rendered by the trial judge, admitting or rejecting certain
ballots for the protestant or the protestee, except in the cases which
are specified as follows:

BIÑAN

First precinct—The ballots Nos. 14, 79, 80, 84, and 93
with the surname “Gomez” should be admitted. There are also admitted 8
ballots claimed by Gomez bearing the names “P. Gomez,” “Felicia Gomez,”
“Feliciaria Gumz,” “Feligno Gomz,” and “Felicecio Gomez.” (Letters A
and C.)

Second precinct.—Of the 6 ballots claimed by Gomez, all
are admitted except ballot No. 25 which bears only the name of Gomez in
the whole ballot, and which is almost illegible. (Let. E, J, and K.)

Third precinct.—Of the 14 ballots claimed by Gomez, all
are admitted except No. 6 with the name “Feliciano,” which is rejected.
(Let. A, B, and C.)

Fourth precinct.—Ballots 20 and 21 claimed by Gomez are admitted. (Let. C.)

SANTA ROSA

First precinct—The 17 ballots Nos. 20, 26, 28, 30, 32, 36,
38, 39, 41, 43, 47, 48, 55, 58, 62, 67, and 74 are admitted as valid
votes for Gomez. Ballot K claimed by Cailles is admitted. (Let. C and
K.)

Second precinct.—The ballot 1-A in which Cailles is voted for two positions should be admitted. (Let. G.)

There are admitted in favor of Gomez the ballots Nos. 1, 2, 5, 7, 9, and 19, ballots A-4, A-6, A-10, and A-11. (Let. B and J.)

The ballot No. 17, “Julican Gomes,” is rejected and should be discounted against Gomez. (Let. D.)

Third precinct.—The ballots 1, “Ficia Gomez;” 2, “Pelicio
Gomez;” 8, “Felictano Gom,” 3 in all, are valid and counted for Gomez.
(Let. C.) We have examined the 13 ballots for Gomez rejected by the
inspectors, and we are of the opinion that 7 of them must be
adjudicated in favor of Gomez. (Let. C and H.)

Fourth precinct.—The ballot B, “Juan Caillies” should be admitted in favor of Cailles. (Let. C.)

The ballot 9, “F. Ganez,” is admitted. (Let. C.)

CALAMBA

First precinct—The ballots Nos. 1, 2, 3, 6, 7, 8, 9, 10, and 13 for Gomez should be admitted. (Let. C, K, and 0.)

The 8 ballots for Cailles rejected by the court should be admitted
except ballot B where two names are voted for governor. Ballot A is
admitted. (Let. C, I, J, K, and LL.)

Second precinct.—By agrement of the parties (p. 216, Part
A) the protestant Cailles renounced his claim as to the 18 ballots
rejected by the inspectors, marked from A-l to A11, inclusive, and from
A-15 to A-21, inclusive, so that 18 votes should be discounted against
him from those granted to him.

The ballots No. 3, “Feliano Gmis” and 4, “Filemano Gonoy” should be counted in favor of Gomez. (Let. C.)

The ballots A, B, K, and Y claimed by Cailles should be admitted. (Let. J.)

Fourth precinct.—The ballots 1, 3, and 5 claimed by Gomez should be admitted. (Let. A and J.)

The ballots for Cailles D and I are admitted. (Let. K.)

LOS BAÑOS

First precinct.—The ballot KK claimed by Gomez is admitted. It is not a ballot in excess.

So also the ballot K claimed by Cailles is admitted. (Let. J.)

Second precinct.—The 2 ballots AA and BB claimed by Gomez are valid. (Let. K.)

SAN PABLO

First precinct.—The ballots C-l, C-2, C-3, C-4, C-13, C-15, and C-19 are valid votes for Cailles. (Let. H and J.)

The ballot G-24 is admitted for Gomez. (Let. C.)

Second precinct.—The ballots G-32, “gomes,” G-38, and G-39 are admitted for Gomez. (Let. B and 0.)

Third precinct.—The ballots G-54 and G-55 “pilicino Gomes” are valid votes for Gomez. (Let. C.)

Fourth precinct.—The ballots G-70, G-72, and G-78 claimed
by Gomez are admitted. The ballot G-77 with an 0 in the space for
Senator is admitted. (Let. A, K, and J.)

Fifth precinct.—The ballots Gomez G—103 and the ballots
G-101, G-104 and G-105, with sinuous lines at the foot, are admitted.
The ballots G-88, G-91 and G-100 are also admitted for Gomez. (Let. J
and K.)

The ballots claimed by Cailles C-79, C-80, and C-86 should be counted for him. (Let. J and K.)

Sixth precinct.—The ballots G-126 and G-127 are not
defective and must be counted in favor of Gomez. Also the ballot G-132,
“Felano Gones.” (Let. C.)

The ballot for Cailles, C-107, admitted by the court, should be
rejected, because the name “Juan guis” voted for governor is not
similar to that of the protestant. (Let. D.)

The ballots C-106, C-108, C-110, C-118, and C-122 claimed by Cailles are good and should be counted for him. (Let. A and K).

Seventh precinct.—The ballots G-144 and G-145 are valid votes for Gomez. (Let. C.)

The ballot 1-B, ‘Tuan Cailles” is valid vote for Cailles. (Let. C.)

Eighth precinct—The ballots C-148, C-149, “Jucaellis” and C-150, “Jana Cailles” are admitted as valid for Cailles. (Let. C.)

The ballot G-155 is admitted for Gomez. (Let. A.)

Twelfth precinct.—The 8 ballots for Gomez marked 3 to 10,
inclusive, which are said to be written by the same hand, are admitted
for Gomez. The writing in the ballots shows some points of difference.

ALAMINOS

First precinct.—The 10 ballots, rejected by the inspectors
and claimed by Gomez, are admitted, including No. 4 in which the latter
is voted for Representative and for governor. (Let. G, J, and K.)

Second precinct.—Of the 12 ballots which Gomez claims, 10
are admitted; ballots 2, 3, 10, and 11 are rejected by being
countersigned; 15 and 16. for Felicia Gomez; 18 Flecano Gomez; 19 and
20 with an excess in the number of persons voted for councillors; and
21 with blank spaces for councillors. (Let. C, J, and K.)

Third precinct.—Ballot No. 1 is counted for Gomez. (Let. K.)

NAGCARLAN

Fifth precinct.—The ballots 1, “Feciano Gomez,” and 3, “Filis Gunis,” are valid votes for Gomez. (Let. C.)

LILIO

First precinct.—The ballots C-l, C-5, C-6, C-8, C-13, C-14, C-15, and C-18 are counted for Gomez. (Let. C and K.)

Second precinct.—The ballots D-3, D-4, and D-6 are admitted for Gomez. (Let. B and C.)

MAGDALENA

First precinct.—The exact number of ballots in favor of
Cailles found in the box is 167, and as the court adjudicated to him
168 it is clear that one vote must be discounted from the total for
Cailles.

Two ballots are counted for Cailles which were rejected by the inspectors. (Let. M.)

Second precinct.—The ballots Nos. 2, 4, 5, 8, 12, 15, 17, 20, 23, 25, and 26, eleven in all, are admitted for Gomez. (Let. A, C, and K.)

MAJAYJAY

First precinct.—The ballots in the boxes of this precinct
having been counted, it appears that Cailles obtained 196 votes instead
of 197 counted by the court, and Gomez 153, instead of 152; for which
one vote must be discounted against Cailles and one more vote must be
added to Gomez.

There is also discounted against Cailles one vote, ballot A, with the name “Juli.” (Let. D.)

Second precinct.—Ballot 3, said to be countersigned with a line under the last name for councillor, is admitted for Gomez. (Let. J.)

Ballot Q for Cailles is rejected because it bears a mark of
identification, to wit, a printed paper with the name of Eulogio
Benitez. (Let. Q.)

CAVINTI

First precinct.—Admitting the allegation of the appellant
that the revision of the ballots of this precinct has not been asked by
the parties, the adjudication made by the court must be modified in the
sense of deducting from Cailles 4 votes and from Gomez 1 vote,
according to the election certificate.

The 6 ballots marked 49 to 54 claimed by Gomez should be admitted,
except No. 50 which bears the printed name of Eulogio Benitez. (Let. C,
K, and Q.)

SANTA CRUZ

Fourth precinct.—The ballots marked 1, 2, 4, 8, 12, 27, and 41 are valid votes for Gomez. (Let. C and J.)

The ballots I, P, Q, and R claimed by Cailles, said to be
countersigned by lines in the upper part of the ballot, are given to
him. The ballot signed on the back is rejected. (Let. J and L.)

Fifth precinct.—The ballots 1 to 5, inclusive, claimed by Gomez are counted for him. (Let. J.)

PAGSANJAN

First precinct.—The ballots for Gomez marked 5 and 8, “Pelicano Gums” and “Filicia Gomes,” are admitted. (Let. C.)

Third precinct.—The ballots A, D, H, and K claimed by Cailles are valid votes for him. (Let. C and LL.)

The ballot No. 1 for Gomez with the name “Ines Lanuza” for councillor is admitted. (Let. K.)

LOÑGOS

Second precinct—The ballots which Gomez claims, Nos. 1, 3, 4, 5, 7, and 9, are admitted for him. (Let. C and J.)

PAETE

First precinct.—Ballots 1, 2, 3, 4, and 6 are awarded to Gomez. (Let. C and P.)

SINILOAN

First precinct—The ballots Nos. 1, 3, 6, 9, 12, 15, 17,
18, and 21, nine in all, are counted for Gomez. Ballot A for Cailles in
which he is voted for two positions is admitted. (Let. P and J.)

Second precinct.—The exact number of votes obtained by
Cailles should be 183 (fol. 377, part J) and not 185, as erroneously
appears in the decision.

The ballots 1, 3, 4, and 5, are admitted for Gomez. (Let. C and J.)

MABITAC

Sole precinct.—To Gomez are awarded 3 ballots claimed by him, Nos. 1, 3, and 4. (Let. H and K.)

FAMY

Sole precinct.—Ballot No. 1 claimed by Gomez is given to him. (Let. K.)

The’ 10 ballots claimed by Cailles are admitted for him. (Let. A, C, and J.)

The result of the preceding revision shows that there should be
awarded to Gomez and to Cailles, or discounted from them respectively,
the votes indicated as

Municpality		Precinct.	Gomez		Cailles
			+	–	+	–
Biñan…………………………………………………………		1	13	……………….	……………….	……………….
	Do………………………………………………….	2	5	……………….	……………….	……………….
	Do………………………………………………….	3	13	……………….	……………….	……………….
	Do………………………………………………….	4	2	………………	……………….	………………
Santa Rosa…………………………………………………		1	17	……………….	1	……………….
	Do………………………………………………….	2	10	1	……………….	1
	Do………………………………………………….	2	10	……………….	……………….	……………….
	Do………………………………………………….	3	10	……………….	1	……………….
Calamba…………………………………………………….		1	9	……………….	7	……………….
	Do………………………………………………….	2	2	……………….	4	18
	Do………………………………………………….	4	3	……………….	2	……………….
Los Baños………………………………………………….		1	1	……………….	1	……………….
	Do………………………………………………….	2	2	……………….	……………….	……………….
San Pablo………………………………………………….		1	1	……………….	7	……………….
	Do………………………………………………….	2	3	……………….	……………….	……………….
	Do………………………………………………….	3	2	……………….	……………….	……………….
	Do………………………………………………….	4	4	……………….	……………….	……………….
	Do………………………………………………….	5	7	……………….	3	……………….
	Do………………………………………………….	6	3	……………….	5	1
	Do………………………………………………….	7	2	……………….	1	……………….
	Do………………………………………………….	8	1	……………….	3	……………….
	Do………………………………………………….	12	8	……………….	……………….	……………….
Alaminos……………………………………………………		1	10	……………….	……………….	……………….
	Do………………………………………………….	2	10	……………….	……………….	……………….
	Do………………………………………………….	3	1	……………….	……………….	……………….
Nagcarlan…………………………………………………..		5	2	……………….	……………….	……………….
Lilio…………………………………………………………..		1	8	……………….	……………….	……………….
	Do………………………………………………….	2	3	……………….	……………….	1
Magdalena………………………………………………….		1	……………….	……………….	……………….	1
	Do………………………………………………….	2	11	……………….	2	……………….
Majayjay……………………………………………………		1	1	……………….	……………….	2
	Do………………………………………………….	2	1	……………….	……………….	1
Cavinti……………………………………………………….		1	5	1	……………….	4
Santa Cruz………………………………………………….		4	7	……………….	4	……………….
	Do………………………………………………….	5	5	……………….	……………….	……………….
Pagsanjan…………………………………………………..		1	2	……………….	……………….	……………….
	Do………………………………………………….	3	1	……………….	4	……………….
Loñgos………………………………………………………		2	6	……………….	……………….	……………….
Paete…………………………………………………………		1	5	……………….	……………….	……………….
Siniloan………………………………………………………		1	9	……………….	1	……………….
	Do………………………………………………….	2	4	……………….	……………….	2
Mabitac……………………………………………………..		………………….	3	……………….	……………….	……………….
Famy…………………………………………………………		………………….	1	……………….	10	……………….
	Total………………………………………………..		_________	_________	_________	_________
			214	2	56	31

Adding by means of an adding machine the votes obtained by each of
the contending parties, according to the judgment, we find an excess of
2 votes against Gomez, so that the true total of the votes of the
protestant and the protestee are 8,797, and 8,566 respectively. If we
compute all the votes that should be added or discounted, according to
our revision, including the votes of certain illiterates, the slight
differences between the recount of the court and the election returns,
and the votes of the municipality of San Pedro which were annulled, the
final result is that the protestant-appellee Juan Cailles obtained
8,937 votes, and the protestee-appellant Feliciano Gomez 8,754 votes,
as appears in the following tables:

 

						Cailles.	Gomez.
According to the decision, they obtained.. …………………………………						8,797	8,566
Votes rejected by the court which should be admitted………………….						56	214
Ballots of illiterates discounted by the court which
	should be added:			Cailles.	Gomez.
		Lilio, first precinct……………………………………………………..		30	119
		Lilio, third precinct…………………………………………………….		4	38
		Cavinti, first precinct………………………………………………….		47	34
		Cavinti, second precinct……………………………………………..		68	5
		Loñgos, first precinct…………………………………………………		29	2
		Loñgos, second precinct…………………………………………….		34	10
				__________	__________
				212	208
				=========	=========	212	208
						__________	__________
						9,065	8,988
Defective ballots admitted by the court
	which should be rejected…………………………………………………..
Ballots to be discounted because of the				23	2
	differences between the recount of the
	courts and the certificates:
		Magdalena, first precinct……………………………………………		1	……………….
		Majayjay, first precinct………………………………………………		1	-1
		Cavinti……………………………………………………………………		4	1
		Siniloan…………………………………………………………………..		2	……………….
				__________	__________
				31	2
				=========	=========	31	2
						__________	__________
						9,034	8,986
Annulled votes of San Padro which should be discounted…						97	232
						__________	__________
			Total of votes of San Pedro which should be discounted.			8,937	8,754
						=========	=========
			Pularity of Cailles………………………………………………….			183

In view of what has been said, reversing the judgment in so far as
it conflicts with this decision and affirming it in so far as it does
not conflict, we declare and adjudge that the protestant-appellee Juan
Cailles was elected at the general elections held in the Province of
Laguna on June 3, 1919, for the position of provincial governor, having
obtained 8,937 votes against 8,754 votes of the protestee and appellant
Feliciano Gomez and 2,668 obtained by Apolinar Barbaza. We therefore
order the Court of First Instance of Laguna to issue a mandamus to the
provincial board of canvassers directing it to correct its canvass in
conformity with the result arrived at by this court and to issue in
favor of Cailles the certificate of election prescribed by law, with
costs against the appellant. So ordered.

Araullo, C. J., Street, Malcolm, Avancena, Ostrand, Johns, and Romualdez, JJ., concur.