AGNETE E. NOBLE, PETITIONER, VS. PEDRO TUASON, JUDGE OF FIRST INSTANCE OF CAMARINES SUR, AND GREGORIO PEÑOSO, RESPONDENTS.

This
is a petition for a writ of certiorari, the petitioner alleging in
substance that at the general elections held on June 2, 1925, in the
municipality of Buhi, Camarines Sur, he obtained 360 votes for the
office of president of the municipality and was declared elected to
that office by the municipal board of canvassers; that the respondent
Gregorio Peñoso obtained only 356 votes; that said respondent presented
a protest against said election to the Court of First Instance of the
Province of Camarines Sur, alleging among other things “that the
protestor was and is a duly qualified voter and a registered candidate
voted for in said election for the office of municipal president of the
said municipality of Buhi;” that said protest, after being entered in
the docket of said Court of First Instance, was acted upon by the
respondent judge, the Honorable Pedro Tuason, who limited the
proceedings to; (a) Appointment of commissioners to open the ballot boxes and count the ballots; (b) the opening of said ballot boxes by the commissioners appointed and examination of the ballots; (c) presentation by the commissioners of their report; and (d)
judgment by the court; and that without any evidence as to the
jurisdictional facts, the respondent judge assumed jurisdiction over
the case and over the persons of the respondent Gregorio Peñoso and the
petitioner Agnete E. Noble.

The petitioner further alleges
that in making the recount of the ballots, the respondent judge made
operations of addition and subtraction without stating his reasons why
certain ballots were valid and other ballots invalid, and erroneously
finding that the petitioner and the respondent Peñoso each received 344
legal votes, declared that the election was tied as between the two.
Upon these facts the petitioner maintains that the proceedings were
conducted in an irregular manner and that the respondent judge
therefore exceeded his jurisdiction.

For a second cause of
action, the petitioner alleges that after reaching the conclusion that
the election was a tie, the respondent judge, under the date of
September 14, 1925, without any authority to do so, ordered that the
parties, Agnete E. Noble and Gregorio Peñoso, “draw lots in the
presence of the court on the 19th of September, 1924, at 8 o’clock in
the morning, to determine who should be declared elected to the
aforesaid office,” the parties being notified of such order; that on
the day assigned for the drawing, the 19th of September, the petitioner
herein objected in writing to the drawing of lots before the court and
asked that the court notify the municipal council of Buhi of the result
of the protest, in order that said council might provide for the
drawing of lots by the parties; that the court overruled said objection
and stated that whether Agnete E. Noble so desired or not, the drawing
would take place before the court, as ordered; that the petitioner was
not notified by the court of its ruling upon his objection in writing
presented on September 19, nor of the subsequent proceedings had before
the court in relation to the drawing announced for said date and only
learned on or about the 29th of September, 1925, through a notification
in writing sent him by the clerk of the court, that the drawing
announced by the court for the 19th of September was held on the 22d of
that month with results favorable to the respondent Peñoso; that in the
meantime the municipal council of Buhi, upon ascertaining that the
court had found that there was a tie, constituted itself a municipal
board of canvassers and after due notice to the parties, held a special
meeting on the 23d of September and then and there conducted a drawing
of lots between the two candidates and that the herein petitioner,
having been successful in this drawing, was again proclaimed municipal
president.

The petitioner further alleges that he was not
present at the drawing held before the court, but that according to
information obtained by him the proceedings in said drawing were as
follows: The respondent judge brought two folded pieces of paper from
his office to the court room and, without exhibiting the contents of
the papers to any one, placed them in a box and ordered the clerk to
draw one of them from the box. The clerk did so and said “Peñoso,” and
immediately thereupon the respondent judge gathered up the two pieces
of paper without exhibiting the contents to the public, and concluded
the proceedings by declaring the respondent Peñoso elected. The
petition further alleges that the respondent judge had no jurisdiction
to order that the parties Agnete E. Noble and Gregorio Peñoso draw lots
in the presence of the court, but that that function pertains to the
municipal council of Buhi under the provisions of section 477 of the
Electoral Law, and that the proceedings followed by the respondent
judge in conducting the drawing of lots as above stated were irregular
and beyond the jurisdiction of the court.

We can find
nothing irregular in the proceedings described under the petitioner’s
first cause of action. The omission to introduce affirmative proof of
the jurisdictional facts alleged in the election protest loses its
importance when it is considered that the protest was duly verified and
that the allegations in question were not denied under oath by the
protestee. These verified allegations in the protest established a prima facie
case sufficient to enable the court to take jurisdiction, and no
evidence to the contrary having been introduced by the protestee, the
court never lost that jurisdiction. It is further to be noted that at
the beginning of the hearing in the Court of First Instance, the
parties agreed “that the ballot boxes be opened, that the ballots be
counted and that upon the result of the count, decision will be rendered.“

For his second cause of action the petitioner relies on section 477 of
the Administrative Code which provides that in case the canvass by the
municipal council “results in a tie for any municipal office the tied
candidates shall draw lots in the presence of the board of canvassers,
and the successful candidate shall be declared elected.” The
petitioner’s contention is that an election protest is in the nature of
a proceeding in mandamus, and that in the present case the court should
have issued a mandate ordering the municipal council of Buhi to
constitute itself into a board of canvassers and conduct the drawing of
lots by the tied candidates. This argument would have been perfectly
sound under the law as it existed prior to the enactment of Act No.
3210, but can no longer be considered valid. The original section 479
of the Administrative Code reads:

“Contests
in all elections for the determination of which provision has not been
made otherwise shall be heard by the Court of First Instance having
jurisdiction in the judicial district in which the election was held,
upon motion by any candidate voted for at such election. The contests
shall be filed with the court within two weeks after the election and
shall be decided by the same as soon as possible after the hearing of
the contest. 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, and to appoint the necessary officers therefor
and to fix their compensation, which shall be payable in the first
instance out of the provincial treasury, and to issue its mandamus
directed to the board of canvassers to correct its canvass in
accordance with the facts as found.”

But section 25 of Act No. 3210 amends this section so as to read as follows:

“Sec. 479. Contested election to office in general.—Contests
in all elections for the determination of which provision has not been
made otherwise shall be heard by the Court of First Instance having
jurisdiction in the judicial district in which the election was held,
upon motion by any registered candidate voted for at such election. The
contests shall be filed with the court within two weeks after the
proclamation.

“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, and to appoint the necessary officers
therefor and to fix their compensation, which shall not exceed five
pesos per diem each and shall be payable in the first instance out of
the provincial treasury.

“The court shall declare who has
been elected or that no candidate has been legally elected, as the case
may be, and the candidate who has been declared elected shall be
entitled to assume office without any other canvass by the board of
canvassers, as soon as the clerk of the court has notified the board of
canvassers of the decision of the court and the person concerned has
received a copy thereof, unless by virtue of the section next following
an appeal shall lie and shall have been filed in accordance with the
provisions of said section. The clerk of court shall immediately send
certified copies of the decision to the board of canvassers and the
candidates affected by the same.”

The
difference between the original section and the section as amended is
so marked and the language is so clear as to admit of no special
interpretation. Under the original section the court was only required
to find the facts and issue a mandate to the board of canvassers to
correct its canvass accordingly. In legal effect the duty of making the
official declaration of the election therefore rested with the board;
under the amended section the duty to do so rests with the court and
the board has nothing to do therewith. It was clearly the intention of
the Legislature to have the proceedings terminate with the judgment of
the court so as to avoid further complications and renewed appeals to
the courts in cases of dissatisfaction with the subsequent action of
the board.

It being his duty to declare who was elected to
the office in question, the respondent judge was fully justified in
ordering that the tied candidates draw lots before the court and in his
presence. Under the law he could not very well do otherwise.

We find no irregularity in the drawing conducted by the court. The
parties appear to have been duly notified and if the petitioner failed
to appear it was through his own fault and voluntary action. The fact
that the writing on the lots was not exhibited to the public at the
time of the drawing is in the circumstances of no consequence; it does
not appear that anyone requested permission to examine them.

From what has been said it follows that the drawing had before the
municipal board was null and void and of no effect; the jurisdiction of
the board to conduct such drawings must be considered limited to ties
resulting from its own canvass or count of the votes.

The
petition for a writ of certiorari is denied and the preliminary
injunction hereinbefore issued is dissolved, with the costs against the
petitioner. So ordered.

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

Street, J., reserves his vote.