G.R. No. 24600. November 28, 1925
CELESTINO GALLARES, PETITIONER AND APPELLANT, VS. FILOMENO CASEÑAS, RESPONDENT AND APPELLEE.
VILLAMOR, J.:
with the Court of First Instance of Bohol an election contest against
the appellee, alleging: (a) That he (contestant) was one of
the registered candidates for the office of provincial governor who
received votes in the general elections held in said province on June
2, 1925; (b) that in said elections the following registered
candidates, with certificates of candidacy, obtained votes for the
office of provincial governor:
Filomeno Caseñas ………………………….. Celestino Gallares …………………………… Jesus Vaño ………………………………….. Eduardo Ramirez ………………………….. Manuel Abueva ……………………………..
(c)
that on July 25, 1925, the provincial board of canvassers of Bohol
proclaimed the contestee elected for the office of provincial governor;
(d) that he (protestant) contests the election of the
contestee on the ground that in said elections the following frauds,
irregularities and violations of the law were committed:
“1.
That in all and each of the precincts or districts of the
municipalities of Inabanga, Clarin, Tubigon, Calape, Valencia,
Garcia-Hernandez, Jagna, Guindulman, Candijay, Anda, Mabini, Ubay,
Talibon, Sierra-Bullones, Loboc, Balilihan, Dauis, Baclayon, Loon,
Antequera and Tagbilaran: several ballots containing the name of the
contestant for the office of provincial governor were rejected as being
marked, void and invalid, and which, if properly and correctly
interpreted, should have been counted as legal votes in favor of the
contestant.“2. That, on the other hand, several ballots
marked, invalid and void in all and each of the precincts or election
districts of the municipalities of Inabangra, Clarin, Tubigon, Calape,
Valencia, Garcia-Hernandez, Jagna, Candijay, Anda, Mabini, Ubay,
Talibon and Sierra-Bullones wherein the name of the respondent appears
were not rejected, but were illegally adjudicated to the respondent as
votes.“3. That several ballots in all and each of the
precincts of the municipalities mentioned in paragraph 2, wherein the
name 6f the respondent does not appear as voted for the office of
governor, were illegally adjudicated in his favor;” (e) that
had not said irregularities or violations of the law alleged in the
preceding paragraphs been committed, the result of the elections would
have been different, and the contestant would have been victorious with
a large majority of votes over the contestee.
After the filing of the protest and the giving of the proper bond fixed
by the court, the contestee filed a demurrer on the ground: (1) That
the court had no jurisdiction over the case; and (2) that the facts
alleged in the protest did not constitute a cause of action.
Jesus Vaño, one of the candidates voted for the office of provincial
governor of Bohol, on July 18, 1925, filed an intervention, praying the
court that judgment be rendered in his favor proclaiming him elected
for the office of provincial governor of Bohol.
On July 22,
1925, the lower court entered an order overruling the demurrer upon the
first ground and sustaining it upon the second.
On the same
date contestant filed a motion praying that he be permitted to amend
his protest and that the contestee be required to answer said amended
protest within a reasonable time. An amended intervention was also
filed. On July 23, 1925, the court denied the motion of the appellant.
On the same day, the contestant filed a notice of his intention to
appeal from the orders of the court dated the 22d and 23d days of July.
Now the appellant claims that the trial court erred: (1) In deciding
the protest on the merits upon the demurrer; (2) in sustaining the
demurrer to the protest on the ground that the facts therein alleged
did not constitute sufficient cause of action; and (3) in overruling
the motion of the contestant to amend his protest which had been
adjudged defective by the trial court.
The contention of the
appellant in connection with the first assignment of error is that
under section 27 of Act No. 3210, no demurrer can be filed in election
contest cases on the ground of insufficiency of the allegations of the
protest. This contention of the appellant is untenable. Section 27 of
Act No. 3210 cited by the appellant, providing that “the candidate
whose election is contested and all other registered candidates voted
for may reply thereto within fifteen days after the summons, * * *”
does not exclude the right of the contestee to allege, before
answering, that the facts set forth in the motion of protest are
insufficient for requiring him to answer, provided that he does so
within the period fixed by the law for filing an answer. The appellant
argues that if the intention of the legislator were to permit the
filing of a demurrer, he should have employed these terms: “The
contestee may file an answer or demurrer, etc.” As to this, the
appellee remarks, “If the intention of the legislature were to prohibit
in election contest cases the filing of a demurrer, it would have said
so expressly.” There is, indeed, in the law no express prohibition as
to the filing of other pleadings besides the answer, and under these
circumstances we are inclined to believe that it would be unjust to
deprive the contestee of a right so generally recognized in judicial
controversies. As to the second assignment of error, we are of the
opinion that the trial court erred in finally dismissing the protest
upon the second ground of the demurrer of the contestee.
From
a reading of the allegations of the protest, it may be seen that
frauds, irregularities and violations of the law are alleged therein,
which, if true, would undoubtedly change the result of the elections.
The fact that in the protest the number of votes which would result in
favor of the protestant after the judicial counting is not specified,
does not affect the right of the protestant, for it being known that
said omission is a defect of the protest, the same may be cured by a
specification of the votes mentioned in paragraphs 1, 2 and 3 of the
protest, without thereby adding new grounds to those already alleged by
the protestant.
The court sustained the demurrer filed by
the contestee “on the ground that, while in subparagraphs 1, 2 and 3 of
paragraph 4 of the complaint it is alleged that several ballots in
favor of the contestant were unduly excluded, and several others were
unduly counted in favor of the contestee, yet the number of votes that
should be adjudicated in favor of the contestant and not counted for
the respondent was not specified, in order that it might be determined
whether the irregularities and frauds committed will alter the result
of the election.” Having sustained the demurrer, the court should have
permitted the contestant to file the necessary specification to make
clear the facts alleged in the aforesaid three paragraphs of the
protest.
In Orencia vs. Araneta Diaz (47 Phil.,
830), this court held that “* * * the established jurisprudence of this
court in connection with amendment of protest is that amendment of
protest may be allowed when said amendment does not change essentially
the grounds of the protest, and this may be done within a reasonable
period before the beginning of the trial, unless there exist special
reasons for making amendment after said period. But when the amendment
is of such a nature that it virtually introduces new grounds not
alleged in the original protest, said amendment must be presented
within the period fixed by the law for the filing of protests. *’ * *”
(Valenzuela vs. Revilla and Carlos, 41 Phil., 4; Cailles vs. Gomez and Barbaza, 42 Phil., 496; Tengco vs. Jocson, 43 Phil., 715.)
For all of the foregoing, the orders appealed from are reversed, the
record is remanded to the court of origin with instructions to admit
the specifications of the votes indicated in the original protest, and
to give the contestee an opportunity to file his answer, and to proceed
afterwards with the trial of the case upon the merits and decide it in
accordance with law. So ordered.
Avanceña, C. J., Street, Ostrand, Johns, Romualdez, and Villa-Real JJ., concur.