CECILIO AYO, PETITIONER, VS. HONORABLE TOMAS FLORDELIZA, JUDGE OF FIRST INSTANCE OF SORSOGON, JUSTO DELLOSA, JULIAN LACRE AND VICENTE DICHOSO, RESPONDENTS.

This is an application for the writ of mandamus by which the
petitioner, Cecilio Ayo, seeks to compel the respondent Judge of the
Court of First Instance of Sorsogon to reinstate an election protest
which said respondent had dismissed and to compel the same judge to
issue a subpoena duces tecum to the municipal secretary of
Bacon, Sorsogon, to produce in court the return of the municipal
council as a board of canvassers showing the number of votes received
by the several candidates for the office of president of the
municipality of Bacon at the last general election. The cause is now
before us upon the demurrers of the respondents.

It appears
that the petitioner was a defeated candidate for the office of the
municipal president of Bacon, Sorsogon, at the last election, the
successful candidate being one Justo Dellosa. In due time thereafter
the present petitioner instituted a contest over the office and made
the said Dellosa, with two other defeated candidates, parties to the
proceeding. In his motion of protest the petitioner asked for a recount
of the votes in the fifth precinct. The successful candidate, Justo
Dellosa, met the protest with a counter-protest, in which he asked for
a recount of the votes in precincts Nos. 1, 2, 4 and 6. One of the
unsuccessful candidates, Vicente Dichoso, also came back with a
counter-protest, in which he asked for a recount of the votes cast in
all six of the election precincts of the municipality. In due course
the recount was begun, but after the votes cast in the first precinct
had been recounted by the commissioners, Dichoso, apparently finding no
encouragement in the results, made a motion to withdraw his
counter-protest, which was granted. This had the effect of placing the
votes of the third precinct out of the litigation; and in order to
bring the votes to this precinct back into the controversy the
petitioner asked for leave to amend and to make the proper changes that
would justify a recount of the votes of this precinct. This motion of
the petitioner was denied by the court as having been presented out of
time. The recount of the votes of the five precincts was continued,
however, and concluded. The matter of the contest then came before the
respondent judge for decision, but as the returns from only five of the
precincts were before the court, and no evidence whatever to show the
returns from the third precinct, his Honor, on August 1, 1925,
dismissed the protest, with costs against the petitioner.

It
is insisted for the petitioner that this action on the part of the
respondent judge was unlawful, inasmuch as the law requires the judge
in charge of a protest proceeding to make a finding as to who was
elected, or whether no person was elected. It is true that the law so
provides but the law contemplates that the proof upon which a lawful
decision can be made shall be placed by the contending parties before
the court; and in a case where a cause is submitted without sufficient
proof to enable the court to determine the protest, it is hot improper,
indeed it is necessary, merely to dismiss the contest.

The
principal contention presented in this petition arises over the
responsibility for the situation which arose in the manner above
stated; and the petitioner seeks to put the blame on the court for not
having before it the return of the board of canvassers, which would
have shown the result of the election in the uncontested precinct. In
this connection it appears that in his original motion the petitioner
asked the court to issue a subpoena duces tecum against the
municipal secretary of Bacon, who is supposed to be the proper
custodian of the report of the canvassing board. In acting upon the
petition his Honor made a proper order upon the municipal treasurer to
produce the boxes, lists of registered voters, and other papers and
documents used in the general election, to the end that the contest
could be proceeded with. His Honor, however, either by oversight or
believing that all of the necessary documents and papers would be
produced by the treasurer, failed to make an order upon the municipal
secretary to produce the return of the board of canvassers. It does not
appear that the attention of his Honor was especially called to the
request for a subpoena duces tecum to the municipal
secretary, and the non-production of the evidence concerning the
returns as to the third precinct was not noted until the cause was
submitted.

In behalf of the respondents it is pointed out
that it was the duty of the petitioner to produce the necessary
evidence upon which a proper judgment could be made, and in particular
it is insisted that the duty of issuing the subpoena duces tecum
is a ministerial duty of the clerk of court, not requiring a special
order of the court. This suggestion given is, we think, satisfactory;
and in our opinion no one is chargeable with the oversight except the
petitioner himself.

The petition is therefore, in our
opinion, not well founded; and the demurrers to the petition will be
sustained and the petition declared insufficient. It furthermore
appearing that the petition suffers from a defect not curable by
amendment, an order absolute will be entered, dismissing the same, with
costs against the petitioner.

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