G.R. No. 24794. November 17, 1925
AURELIO CECILIO, PETITIONER, VS. GABRIEL BELMONTE AND THE COURT OF FIRST INSTANCE OF NUEVA ECIJA, RESPONDENTS.
VILLAMOR, J.:
of having a writ of mandamus issued, directing the respondent judge to
order the opening of the ballot boxes of precinct No. 3 of Guimba, and
the examination and revision of the ballots of said precinct, as well
as of all the contents thereof, and to have Exhibit B, which is the
order of the respondent judge, annulled and set aside, so far as it
takes for granted the supposed tampering with the ballot boxes of
precinct No. 3 of Guimba before the contestant has finished introducing
his evidence.
As grounds of the petition it is alleged:
(a)
That the petitioner and the respondent Gabriel Belmonte, besides Felino
Cajucom, were the only registered candidates voted for in the last
general elections held June 2, 1925, for the office of provincial
governor of the Province of Nueva Ecija, and that the provincial board
of canvassers of said province on July 2, 1925, proclaimed the
respondent Gabriel Belmonte elected for the office of provincial
governor of Nueva Ecija, declaring that said respondent had obtained
10,841 votes against 10,797 cast for the petitioner Aurelio Cecilio and
1,646 for the other candidate, Felino Cajucom, that is to say,
adjudicating to the respondent Gabriel Belmonte a majority of 44 votes
over the petitioner Aurelio Cecilio.
(b) That
the petitioner filed in due time in the Court of First Instance of
Nueva Ecija a motion of protest contesting the proclamation and
election of the respondent Gabriel Belmonte, among other grounds,
because “in precinct No. 3 of Guimba the petitioner obtained 123 votes
for the office of governor and the respondent Gabriel Belmonte 70
votes, but the board of inspectors stated in their return that the
respondent Gabriel Belmonte had obtained in said precinct 145 votes and
the petitioner 83, thus falsifying the election return and
misrepresenting the votes which each candidate for the office of
governor has obtained in said precinct.”
(c) That
the respondent after filing his answer and counterprotest, filed
another answer to the amended protest, alleging that in precinct No. 3
of Guimba a false count was made, that is to say, that there were
counted in favor of the contestant votes which should not have been
counted, and that there were not counted votes in favor of the
contestee which should have been counted, and alleging especially “that
in the ballot box of precinct No. 3 of Guimba, there were illegally
introduced, after the count, 75 ballots approximately, with the name of
the contestant on about 40 of them, taking away at the same time an
equal number of legal ballots with the name of the contestee Gabriel
Belmonte thereon, for the purpose of justifying afterwards the
allegation in the protest that the contestant had obtained 143 votes
for the office of governor and the respondent Gabriel Belmonte 70
votes, and that the certificate wherein 145 votes were adjudicated to
the contestee Belmonte and 83 of the contestant was falsified.”
(d)
That under the allegations of the contestant as well as of the
contestee in regard to precinct No. 3 of Guimba, the best evidence that
might have been and may be offered of the truth in connection with said
precinct is the contents of the ballot boxes and the review of their
contents, or at least no complete evidence can be introduced without
reviewing said contents and the ballot boxes of said precinct.
(e)
That on the day of the trial the petitioner prayed the respondent
judge, under the provisions of article 479 of the Election Law, as
amended by Act No. 3210, to order the opening of each and every one of
the ballot boxes of each and every one of the election precincts of
Nueva Ecija, the subject-matter of the protest, in order that all of
the ballots of said precincts and the contents of the ballot boxes
might be reviewed by the proper reviewing commissioners, which petition
was denied by the court upon the ground that the petitioner had not
introduced sufficient evidence to prove that the ballot boxes of said
election precincts, and especially Precinct No. 3 of Guimba, had not
been properly kept, to which denial the petitioner excepted in time.
(f)
That the petitioner, out of courtesy, introduced certain evidence as to
the safe-keeping of the ballot boxes, and the respondent judge, after
hearing said evidence, ordered the opening of the ballot boxes of all
the polling places, except of precinct No. 3 of Guimba.
(g)
That the respondent Gabriel Belmonte stubbornly objected to the
examination and revision of the ballots of precinct No. 3 of Guimba, as
well as the review of the ballots and contents of said boxes,
notwithstanding the repeated petitions of the petitioner; and the
respondent judge had been reserving the ruling on said petitions of the
petitioner for the opening of the ballot boxes and the review of the
ballots until two months after the filing of the protest the petitioner
was notified of the order denying his motion for the review of said
ballots of precinct No, 3 of Guimba, and consequently the opening of
the ballot boxes of said precinct.
(h) That the
petitioner having asked for the opening of the ballot boxes and the
review of the ballots of precinct No. 3 of Guimba, as well as the
examination of all the contents of said ballot boxes, in accordance
with section 479 of the Election Law, as amended by Act No. 3210, the
respondent court has the ministerial and imperative duty to grant said
petition and make the proper order for the opening and review of the
contents of the ballot boxes in question.
(i) That
unless this high court should order the opening of said ballot boxes of
precinct No. 3 of Guimba and the review of the contents thereof, the
petitioner would be prevented from duly proving his allegations in the
motion of protest with regard to precinct No. 3 of Guimba, and the
petitioner has no other adequate, obvious, appropriate, speedy and
effective remedy in the ordinary course of law to have the respondent
judge perform the ministerial duty to order the opening of said ballot
boxes and the review of the contents thereof.
The
respondents filed their answer to this complaint, admitting the
allegations contained in the first seven paragraphs thereof, and
alleging as special defenses:
(1) That the evidence
introduced by the petitioner to show the proper safe-keeping of the
ballot boxes of precinct No. 3 of Guimba was successfully rebutted by
the evidence introduced by the respondent.
(2) That the
petitioner did not object to the evidence offered by the respondent,
nor did he question in the lower court the correctness of its admission.
(3) That the petitioner has not adduced any proof to overthrow the
evidence introduced by the respondent as to the tampering with the
ballot boxes of precinct No. 3 of Guimba.
(4) That on
September 16 of this year, the respondent judge entered an order,
denying the opening of the ballot boxes of precinct No. 3 of Guimba.
(5) That the petitioner did not take any exception to this ruling of the trial court.
(6)
That as the respondent party introduced evidence as to the tampering
with the ballot boxes, the trial court believes that it lay within its
discretion to order the opening thereof upon the petition of either
party, and likewise to order the same of its own accord, if in its
opinion the examination of the ballots would in any way serve the
interests of justice.
(7) That in the event of an error
having been committed by the respondent court in weighing the evidence
as to the tampering with the boxes, such an error cannot be corrected
through mandamus proceeding.
(8) That the petitioner not
having excepted to the order of the trial court providing that before
proceeding with the opening of the ballot boxes and the recounting of
the ballots, he should introduce evidence that the same have been duly
kept intact, the petitioner cannot in a mandamus proceeding maintain
that it is an imperative duty of the respondent court to open the
ballot boxes at any time that the same may be asked for with or without
evidence that the same have not been tampered with.
(9) That
any such allegations, as the petitioner did not make in the court
below, either verbally, or in writing, before or after the denial of
the opening of said boxes, were not submitted to the respondent judge,
and the latter has not had an opportunity to consider them for the
decision of the incident which has given rise to this proceeding.
(10)
That in an election contest, when a party contesting the legality of
the return of an election cannot present primary evidence, which are
the ballots, because the ballot boxes have been tampered with, and, on
the other hand, the election return cannot be sustained because the
same is also attacked as fraudulent, in that case the contestant party
may resort to secondary evidence, as for instance, the testimony of the
inspectors of election and of the watchers, the tally sheet, the
surplus ballots, the stubs of the ballots torn off, etc. But in that
case it is the duty of the petitioner to ask for the opening of the
ballot boxes not for the purpose of making a recounting of the ballots,
the probative force of which was lost on account of the tampering with
the ballot boxes, but for the purpose of using as evidence the
documents above mentioned and taking them in connection with the
testimony of the witnesses.
From an examination of the
record, it appears that the allegations of the petitioner and of the
respondents, just as the points made by the attorneys for both parties
in their oral argument and respective memorandum, only raise a question
of law, to wit, whether or not a contestant, who alleges irregularities
committed by the election officers in the count of the votes, must
introduce evidence as to the proper safe-keeping of the ballot boxes
before he may make use of his right to present the contents of the
ballot boxes to prove his allegations. As may be seen, the question
involves the interpretation of section 479 of the Election Law, as
amended by section 44 of Act No. 3030, and by section 25 of Act No.
3210. Said section 479 provided among other things:
“Sec.
479. * * * Such court shall have exclusive and final jurisdiction,
except as hereinafter provided, and shall forthwith cause the
registration lists and all ballots used at such election to be brought
before it and examined, * * *.”
This section was amended by section 44 of Act No. 3030 as follows:
“Sec.
479. * * * Such court shall have exclusive and final jurisdiction,
except as hereinafter provided, and shall forthwith cause the
registration lists and all ballots used at such election to be brought
before it and examined, * * *”
Finally section 25 of Act No. 3210, amending said section, provides:
“Sec. 479. * * *.
“Such
court shall have exclusive and final jurisdiction, except as
hereinafter provided. Upon petition of an interested party, or of its
own accord if the interests of justice require it, said court shall
forthwith cause the registration lists, ballot boxes, ballots, and
other documents used at such election to be brought before it and
examined, * * *”
It may
be seen from a reading of the amendments made to the Election Law on
this point that while Act No. 8030 requires that the registration lists
and all the ballots used in the election be presented and examined, Act
No. 3210 provides that upon the petition of a party or of its own
accord, the court may order that the registration lists, ballot boxes,
ballots and other documents used in the election be brought before it
and examined, if the interests of justice so demand. The substantial
portion of the provision, that is, the bringing before the court and
examination of the ballots used in the election, has remained the same,
with the only modification that even in the absence of a petition of an
interested party, the court motu proprio may order the
examination of said ballots, if the interests of justice so demand.
Now, this provision of the Election Law has already time and again been
interpreted by this court in various election cases.
In the case of Manalo vs.
Sevilla (24 Phil., 609), this court, passing upon the question whether
or not the trial court erred in opening the ballot boxes without any
more evidence than the allegations contained in the motion of protest,
said:
“We think not. The allegations of the
protest are made under oath; they set out in detail the irregularities
complained of. These allegations, if true, lay a sufficient foundation
for the recount. This is especially the case in view of the wording of
the statute. It provides that, upon filing the protests, the ‘court
shall forthwith cause the registry lists and all ballots used at such
election to be brought before it and examined.’ “
In the case of Hontiveros vs. Altavas (24 Phil., 632), this court said:
“In
support of the sixth alleged error, it is insisted that the court
committed a reversible error by directing the commissioners to open the
ballot boxes and examine and recount the ballots without first
requiring the protestant to make a prima facie showing of
fraud of gross irregularities. This contention is based upon the
proposition that there exists a presumption in favor of the legality of
the election and the correctness of the returns.“The law
provides that upon the institution of the contest the court ‘shall
forthwith cause the registry lists and all ballots used at such
election to be brought before it and examined * * *.’ (Sec. 27.) The
filing of the protest and the service of the same upon all candidates
voted for gives the court jurisdiction to proceed to a final
determination of the case, and having once acquired such jurisdiction
the court is expressly empowered to examine all the ballots. The
ballots cannot be examined without opening the boxes. The law does not
require prima facie showing other than the allegations in the protest
of fraud or irregularities in order to authorize the opening of the
boxes. If the parties by agreement accept the returns from any precinct
or precincts, however, the necessity for the opening of the boxes would
cease to exist as to them. In view of the plain provisions of section
27, it is not difficult to reach the conclusion that this alleged error
is not well founded.”
In the case of De la Merced vs. Revilla and Camacho (40 Phil., 190), this court, confirming the doctrines laid down in the cases of Manalo vs. Sevilla, and Hontiveros vs. Altavas, supra, said:
“The law does not require a prima facie
showing, other than the allegations in the protest, of fraud or
irregularities in order to authorize the opening of the ballot boxes.
(Hontiveros vs. Altavas, 24 Phil., 632, 648.) If, however, the
parties, by agreement accept the returns from any precinct, or
precincts the necessity for the opening of the boxes would cease to
exist, as to them. A protest under oath, alleging facts sufficient to
establish that illegal votes were cast and counted for the opponent,
which are sufficient to change the election, makes a prima facie case for the opening of the ballot boxes and the recounting of the ballots. (Manalo vs. Sevilla, 24 Phil., 609.)“In
our opinion, it is an error and in violation of the mandatory duties of
the court to deny the interested party, under proper allegations, the
right to examine all of the ballots used at the election and to present
evidence with reference to the legality of the questioned ballots.
Under an issue properly presented in a motion of protest, raising the
question of the legality or illegality of ballots cast and the counting
of the same, the law orders the court to have brought before it all
ballots used at the election in the precincts which are questioned. It
is a right, under an issue properly framed, on the part of the
protestant, and the court has no right or authority to deny it. The law
is mandatory.”
In the course of the
mandamus proceeding instituted by Valenzuela against the judge who was
then presiding over the Court of First Instance of Bulacan (R. G. No.
16327),[1] wherein the
respondent judge denied the motion of the petitioner for the opening of
certain ballot boxes of the precincts covered by the protest, this
court said:
“Upon consideration of the case
and the application of counsel for the petitioner Pio Valenzuela, and
it appearing that by a decree of the 12th of this month of March, the
judge of first instance ordered the opening of the ballot boxes, as
prayed for by the petitioner, with the exception of those objected to
by the respondent party, as having been tampered with, and which are
indicated in said decree, wherein nothing is said contrary to the
assertion of respondents’ counsel;“And taking into account
that said decree absolutely denies the opening of the excepted ballot
boxes, without giving the reason or ground for said ruling of the
judge, it not being proper nor just, in a case where the evidence
sought to be introduced has not been shown to be irrelevant,
impertinent, or immaterial to the object and purpose of the motion of
protest pending in the court, to reject such evidence to the prejudice
of the petitioner and the right administration of justice, since by
such evidence it is sought to discover where the truth lies among the
facts alleged by the parties in interest for the due adjudication of
this litigation;“The order of dismissal of the 24th
instant is set aside, and it is adjudged and decreed that the writ of
mandamus applied for issue, with the costs against the respondent Juan
B. Carlos, directing the judge of first instance of Bulacan to order
the opening, at the hour and date he may deem fit, of the ballot boxes
of precinct No. 2 of the municipality of Baliwag, of precincts Nos. 1
and 2 of Guiguinto and precincts Nos. 2 and 3 of San Rafael in election
contest No. 2107.”
And recently, in the case of Lopez vs.
Araneta Diaz (R. G. No. 24604, promulgated October 3, 1925, not
reported), we held that when in the motion of protest certain
irregularities committed by the election inspectors in the count of the
votes are alleged, this constitutes sufficient ground for the opening
of the ballot boxes and the examination of the questioned ballots.
There can be no doubt, in view of what was above stated, that in so far
as it relates to the examination of the registration lists, ballot
boxes, ballots and other documents used in the election, the provision
of section 479 of the Election Law, as amended by section 25 of Act No.
3210, imposes upon the court an imperative duty, and the law does not
require any more prima facie evidence than the allegation in
the protest of the commission of frauds or irregularities in the count
of the ballots in order to authorize the opening of the ballot boxes.
To require the contestant to prove the proper safe-keeping of the
ballot boxes before he may ask for the opening thereof would be to
amend the law by imposing upon the contestant a condition which the
lawmaker did not deem it fit to require. To allow the contestee to
allege and introduce evidence of the tampering with the ballot boxes,
before they are opened, would be to sanction an easy way to defeat a
protest. The petitioner has raised in his protest the question relative
to the legality or illegality of certain ballots in precinct No. 3 of
the municipality of Guimba, as well as the accuracy of the count
thereof, and therefore he has the right to have the ballots examined
which have been used in said precinct and introduce evidence as to the
legality of the questioned ballots. In our opinion, it constitutes a
violation of the imperative duties of the judge to deny to the
petitioner the opening of the ballot boxes in question.
It must be observed that in Cailles vs.
Gomez and Barbaza (42 Phil., 496), we held “where the ballots lose
their probative value, because the ballot boxes have been tampered with
and the ballots altered, the count made by the board of election
inspectors is the best evidence of the result of the election. The oral
testimony of the voters who voluntarily waive the secrecy of the vote
(Dayrit vs. San Agustin and Valdez, 40 Phil., 782; Valenzuela vs. Carlos and Lopez de Jesus, supra),
is admissible for the purpose of verifying the returns; but said
testimony cannot be given more weight than the returns of the board of
election inspectors, unless it is shown that the returns are false.”
Again, we held in Lucero vs. De Guzman (45 Phil., 852), that “where the conservation of the boxes is prima facie
shown and their contents are found intact upon being opened according
to law, the ballots themselves become the best evidence of the votes
cast; and it is the duty of the court to determine the contest, so far
as dependent upon the count, by the proof afforded by the ballots.” But
the doctrines laid down therein, as well as in the other cases cited by
the respondents in their memorandum, have reference to the
admissibility of the ballots as evidence. And it is very clear that the
contestant cannot introduce the ballots as evidence unless the ballot
boxes are opened and the questioned ballots examined.
The
fact that the instant protest is about the election of a provincial
officer does not affect the question, for section 479 of the Election
Law, as lastly amended, does not make any distinction in the
application of its provisions. The fact that in this case appeal may
lie does not prevent the granting of the remedy applied for, once it is
proven that the respondent judge has refused to perform an imperative
duty enjoined by the law.
It is said that the petitioner
cannot be granted the relief applied for, for the reason that he has
not previously filed a motion in the lower court for the
reconsideration of the order denying the opening of the boxes. This
allegation of the respondents is of no important. It appears in the
record that the day next following that when the said adverse order was
entered, the petitioner took exception to said ruling, announcing his
intention to institute a proceeding in the Supreme Court. It likewise
appears in the record that the petitioner has persistently applied for
the opening of the ballot boxes of precinct No. 3 of the municipality
of Guimba, and on seeing the position of the trial court in this
question at the beginning of the trial, he made a verbal motion for the
reconsideration of the petition denied by the court for the opening of
the ballot boxes.
Needless to say, the conclusion which we
have arrived at does not and cannot have the effect of controlling the
discretion of the trial court in judging the admissibility or
inadmissibility of the ballots and certificates of election contained
in the ballot boxes in question in accordance with the dictates of
sound judgment. We only wish to say that it is not proper to talk of
the admissibility as evidence of the ballots and other papers used in
the election so long as the ballot boxes are not opened. The opening of
the ballot boxes is a prerequisite to discussing the question relative
to the probative force of their contents.
Adhering,
therefore, to the doctrines laid down in the cases aforecited, we are
of the opinion, and so hold, that the writ applied for should issue,
directing the respondent judge to order the opening of the ballot boxes
of precinct No. 3 of Guimba and to proceed with the trial of the
protest in question and decide the same afterwards according to law.
No special finding as to costs is made. So ordered.
Avanceña, C. J., Street, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.
[1] Valenzuela vs. Revilla and Carlos, upon motion for reconsideration, promulgated March 31, 1920, not reported.