CARLOS ORENCIA, PETITIONER, VS. HONORABLE EMILIO ARANETA DIAZ, JUDGE OF FIRST INSTANCE OF LA UNION, CALIXTO LLOREN, BASILIO HALOG AND BERNABE SUGUITAN, RESPONDENTS.

The petitioner prays this court that a writ of mandamus may be issued
addressed to the respondent judge, ordering him to set aside and annul
the order entered by him dismissing the protest, to reinstate the same
and continue taking cognizance thereof, to order the opening of the
ballot boxes for their revision, and to permit him to amend the protest
by specifying the essential facts and swearing to it, with the costs
against the respondent.

The respondent filed a demurrer to
the complaint on the ground that the facts therein set forth do not
constitute a cause of action.

It appears from the allegations of the complaint: (a)
That the petitioner filed a protest against the election of the
respondent Calixto Lloren for the office of municipal president of
Tubao, La Union, alleging certain grounds stated in paragraph 4 of his
protest; (b) that the respondent Calixto Lloren filed two
pleadings, (1) a demurrer and a motion for dismissal, and (2) an answer
and counter-protest; (c) that on the day of the hearing of the
protest, that is to say, July 9, 1925, the respondent Calixto Lloren
verbally moved to withdraw his answer and counter-protest, which
petition was granted by the court over the objection of the petitioner;
(d) that on July 9, 1925, the respondent judge entered an order,
dismissing the protest on the following grounds: (1) That the
fundamental allegations thereof are deficient in that they do not state
facts justifying the annulment of the election of the respondent or the
alteration of the result of the election, and (2) that the protest is
not sworn to.

The grounds alleged in paragraph 4 of the protest are:

“(a)
That in precinct No. 1, the board of inspectors committed the following
irregularities: (1) The ballots read and those not read were mixed up
and on account of this mix-up it resulted that there were 56 ballots in
question, which two inspectors wanted read or re-counted, but the
chairman of the board refused to do so, and they were not read; (2) of
the ballots rejected the petitioner has three votes in his favor which
are clean ballots and which the board rejected; (3) they counted one
vote in favor of the respondent Calixto Lloren, which is a ballot that
was really marked or void; and (4) they gave one vote to the respondent
Calixto Lloren in a ballot in which the names of Calixto Lloren is
found in the space for the office of member of the provincial board.

“(b)
That in precinct No. 2, the board of inspectors committed the following
irregularities: (1) They suspended the meeting, which lasted 4 hours,
during the canvassing; (2) after the canvass of the votes, Fabian
Pangonil, leader and brother-in-law of the respondent Calixto Lloren,
asked the board about the ballots rejected, and when they were shown to
him, he selected five of them and caused the chairman of the board to
read and count them, with the result that two of said ballots were
votes in favor of the petitioner and three in favor of the respondent
Lloren, which ballots are really void because they had already been
rejected by the board; (3) they permitted the erasing in the tally
sheet, as well as on the blackboard, of votes already noted, because it
was so ordered by the chairman on the ground of having read ballots
different from those chosen.

“(c) That in precinct
No. 3, the board of inspectors committed the following irregularities:
(1) They suspended the meeting, which lasted 6 hours, during the
canvassing, on account of a discussion about forty-seven ballots; (2)
it was decided by the board not to read those forty-seven ballots and
so it was made to appear in the minutes, and the same were kept in the
box; later on the leaders of the respondent Lloren, Fabian Pangonil,
Isabelo Llones, present municipal president of Tubao, and Canuto
Verceles, the latter two being watchers in precinct No. 4, suddenly
appeared with knowledge of the defeat of Calixto Lloren in the other
precincts which had already finished counting the votes, and asked the
board to read the forty-seven ballots, which was denied by the chairman
of the board, because the counting was already terminated and the
ballots were then kept in the box; and in view of this refusal they
talked to the inspectors, which lasted four hours approximately, and
the latter, granting the request, took from the box the forty-seven
ballots and read thirteen of with the following result: Five for
Calixto Lloren, 5 for Bernabe Suguitan, 2 for Carlos Orencia, the
petitioner herein, and 1 for Basilio Halog, which should have been
annulled or rejected; (3) they gave one vote to Calixto Lloren in a
ballot wherein the same name appears in the column for the office of
president as well as in that of vice-president; (4) they rejected one
vote in favor of the petitioner because in the corresponding ballot
there appeared in the office of councilor the name of Maria Viduya,
instead of considering it as Mariano Viduya, who is a candidate for
councilor.

“(d) That in precinct No. 4, the board
of inspectors committed the following irregularities: (1) They
permitted Canuto Verceles, Isabelo Llones, and Nicolas Oiler, watchers,
to electioneer within the election precinct; (2) they gave one vote to
respondent Lloren in a ballot which should have been annulled because
the name of Calixto Lloren appears in the column for the office of
president as well as in that of vice-president; (3) they failed to
count 46 ballots which were clean in favor of the petitioner.”

On July 9, 1925, the respondent judge, upon the motion of the protestee, entered the following order:

“Considering
the motion for dismissal of the protest presented in this case, after
examining the allegations thereof specially paragraph 4, wherein the
grounds of the protest are set forth, and after Hearing the arguments
of the attorneys for both parties, the court finds that the fundamental
allegations of the protest are deficient in that they do not state
facts essential to annulling the election of the respondent or altering
the result of the election, and that the protest is not sworn to.

“Wherefore the motion to dismiss is sustained, with the costs against the contestant. So ordered.

“Given in open court in San Fernando, La Union, this 9th day of July, 1925.”

The question now at issue is whether or not, notwithstanding the order
of dismissal entered by the respondent judge in the exercise of his
jurisdiction over the matter, the mandamus applied for should issue.

In the case of De la Cruz vs. Revilla and Bustos (40 Phil., 234), this court held.

“The
decision of the Court of First Instance on a demurrer to a motion of
protest in a municipal election contest is final and not appealable,
and cannot be reviewed on an application for the writ of mandamus. The
remedy of the protestant is to amend the motion of protest. The Supreme
Court has no authority to substitute its judgment for the judgment of
the Court of First Instance, however much it might, upon a
consideration of the original motion of protest, differ from the
conclusion of the lower court.”

In the case
now before us a municipal election protest was presented; to said
protest a demurrer was filed on the ground that the facts therein set
forth did not constitute sufficient cause for annulling the election of
the respondent or altering the result of the election; and the court
passed upon the demurrer, rendering the order of July 9, 1925, above
mentioned. This being so, it seems to us inevitable that the doctrine
laid down in the case of De la Cruz vs. Revilla and Bustos, supra, must be applied here.

The petitioner had the right to amend his protest, but when he applied
to the court for permission to amend it, it was after the respondent
judge had held that the facts alleged in the protest did not constitute
sufficient cause for annulling the election of the respondent Lloren or
altering the result of the election., In view thereof, if the
petitioner is permitted to amend his protest, he would do so by
alleging facts which were not specified in the original protest, and
outside of the legal period for the filing of protests. May the
contestant amend his protest outside of the two weeks after the
proclamation of the result of the election?

In Valenzuela vs.
Carlos and Lopez de Jesus (42 Phil., 428), the Supreme Court held: “A
Court of First Instance will not be reversed for having permitted the
contestee to amend his counter-protest three months after the contest
had been begun, it appearing that no proof had at that time been taken
by either party and that the taking of proof thereafter extended over a
period of more than a year.”

In Cailles vs. Gomez
and Barbaza (42 Phil., 496), the court held: “In election contests, the
motion of protest can only be amended within a reasonable time before
the commencement of the trial, unless special reasons exist for
permitting it after such period.” In that decision, the following
doctrine taken from 20 Corpus Juris, page 234, was cited: ” ‘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'”

And in Tengco vs.
Jocson (43 Phil., 715), one of the questions raised has reference to
the amendment of an election protest after the expiration of the period
within which the original protest should be presented. This court
decided this question in the negative, citing with approval the case of
Gillespie vs. Dion (18 Mont., 183; 33 L. R. A., 703), wherein
the court held: ” * * * ‘Doubtless, amendments may be made to a
statement (protest) sufficiently good to enable the proceeding to be
considered, provided such amendments do not essentially change the
grounds of the contest, or set forth grounds where none were originally
stated; but, where the amendments are so radical as to virtually
initiate a contest where really no grounds at all had been specified in
the original statement, we are inclined to hold they ought not to be
permitted after the ten days allowed by law for commencing proceedings
(the protest) have expired. A dissatisfied elector should be vigilant.'”

It follows from the doctrines laid down in the three cases just cited
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. In view of the plain terms of the order of
dismissal above-mentioned, we see no other way of amending the protest
in question except by alleging new facts not expressed in the original
protest, and this outside of the time given by the law for filing
protest, which is not permissible.

For all of the foregoing, and adhering to the doctrine laid down in the case of De la Cruz vs. Revilla and Bustos, supra, we hereby hold that the mandamus applied for cannot be granted. The costs shall be taxed against the petitioner. So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.