G.R. No. 30241. December 29, 1928
GREGORIO NUVAL, PETITIONER AND APPELLANT, VS. NORBERTO GURAY ET AL., RESPONDENTS. NORBERTO GURAY, APPELLEE.
VILLA-REAL J.:
judgment of the Court of First Instance of La Union, upholding the defense of
res judicata and dismissing the quo warranto proceeding instituted by the said
Gregorio Nuval against Norberto Guray and others, with costs against the
petitioner.
In support of his appeal, the appellant assigns the following
alleged errors as committed by the trial court in its judgment, to wit:
“1. The lower court erred in holding that the judgment rendered
upon Gregorio Nuval’s petition for the cancellation of Norberto Guray’s name on
the election list of Luna is conclusive and constitutes res judicata in the
present case.“2. The trial court erred in not holding that Norberto Guray at
the time of his election, was ineligible for the office of municipal president
of Luna, not having had one year’s residence in said municipality.“3. The lower court erred in not finding in its judgment that
the petitioner is entitled to hold the office in question.”
In regard to the first assignment of error, the evidence
adduced during the trial of the case shows:
That on May 11, 1928, and within the period fixed by section
437 of the Administrative Code, as amended by Act No. 3387, Gregorio Nuval
filed, in civil case No. 1442 of the Court of First Instance of La Union, in his
dual capacity as a voter duly qualified and registered in the election list of
the municipality of Luna, and as a duly registered candidate for the office of
municipal president of said municipality, a petition against Norberto Guray
asking for the exclusion of his name from the election list of said
municipality, not being a qualified voter of said municipality since he had not
resided therein for six months as required by section 431 of the said
Administrative Code.
Proceedings were had upon the petition in accordance with
sections 437 and 438 of the same Code, as amended by Act No. 3387, and Judge E.
Araneta Diaz, rendered judgment dismissing it because, in his opinion, Norberto
Guray was a bona fide resident of the municipality of Luna from January 1, 1927.
As that order was not appealable, Norberto Guray’s name remained in the election
list of the municipality of Luna.
The general elections having been held on June 5, 1928,
Norberto Guray was elected to the office of municipal president of Luna by a
plurality of votes, Gregorio Nuval obtaining second place. On June 7, 1928, the
municipal council of Luna, acting as the municipal board of canvassers,
proclaimed the respondent, Norberto Guray, elected to the office of municipal
president of the said municipality of Luna for the next triennium.
On June 18, 1928, Gregorio Nuval filed the present action of quo
warranto as provided in section 408 of the Administrative Code, as amended by
Act No. 3387, asking that Norberto Guray be declared ineligible for the office
of municipal president of Luna, for not having had a legal residence of one year
previous to the election as required by section 2174 of the said Administrative
Code in order to be eligible to an elective municipal office.
The question to be solved under the first assignment of error
is whether or not the judgment rendered in the case of the petition for the
exclusion of Norberto Guray’s name from the election list of Luna, is res
judicata, so as to prevent the institution and prosecution of an action in quo
warranto, which is now before us.
The procedure prescribed by section 437 of the Administrative
Code, as amended by Act No. 3387, is of a summary character and the judgment
rendered therein is not appealable except when the petition is tried before the
justice of the peace of the capital or the circuit judge, in which case it may
be appealed to the judge of first instance, with whom said two lower judges have
concurrent jurisdiction.
The petition for exclusion was presented by Gregorio Nuval in
his dual capacity as qualified voter of the municipality of Luna, and as a duly
registered candidate for the office of president of said municipality, against
Norberto Guray as a registered voter in the election list of said municipality.
The present proceeding of quo warranto was interposed by Gregorio Nuval in his
capacity as a registered candidate voted for the office of municipal president
of Luna, against Norberto Guray, as an elected candidate for the same office.
Therefore, there is no identity of parties in the two cases, since it is not
enough that there be an identity of persons, but there must be an identity of
capacities in which said persons litigate. (Art. 1259 of the Civil Code; Bowler
vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165.)
In said case of the petition for the exclusion, the object of
the litigation, or the litigious matter was the exclusion of Norberto Guray as a
voter from the election list of the municipality of Luna, while in the present
quo warranto proceeding, the object of the litigation, or the litigious matter
is his exclusion or expulsion from the office to which he has been elected.
Neither does there exist, then, any identity in the object of the litigation, or
the litigious matter.
In said case of the petition for exclusion, the cause of action
was that Norberto Guray had not the six months legal residence in the
municipality of Luna to be a qualified voter thereof, while in the present
proceeding of quo warranto, the cause of action is that Norberto Guray has not
the one year’s legal residence required for eligibility to the office of
municipal president of Luna. Neither does there exist, therefore, identity of
causes of action.
In order that res judicata may exist the following are
necessary: (a) Identity of parties; (b) identity of things; and (c) identity of
issues (Aquino vs. Director of Lands, 39 Phil., 850). And as in the case of the
petition for exclusion and in the present quo warranto proceeding, as there is
no identity either of parties, or of things or litigious matter, or of issues or
causes of action, there is no res judicata.
For the above considerations, the trial court erred in holding
that the judgment rendered in the case on the petition of Gregorio Nuval asking
for the “cancellation of Norberto Guray’s name in the election list of Luna is
conclusive and, constitutes res judicata in the present case.
With respect to the second assignment of error, the evidence
establishes the following facts:
Up to June 27, 1922, Norberto Guray had resided in the
municipality of Luna, his birthplace, where he had married and had held the
office of municipal treasurer. On that date he was appointed municipal treasurer
of Balaoan, Province of La Union. The rules of the provincial treasurer of La
Union, to which Norberto Guray was subject as such municipal treasurer, require
that municipal treasurers live continuously in the municipality where they
perform their official duties, in order to be able to give an account of their
acts as such treasurers at any time. In order to qualify and be in a position to
vote as an elector in Balaoan in the general elections of 1925, Norberto Guray
asked for the cancellation of his name in the election lists of Luna, where he
had voted in the general elections of 1922, alleging as a ground therefor the
following: “On the ground of transfer of my residence which took place on the
28th day of June, 1922. My correct and new address is Poblacion, Balaoan, La
Union;” and in order to be registered in the election lists of Balaoan in the
general elections of 1925, he subscribed affidavit Exhibit F-1 before the board
of election inspectors of precinct No. 1 of Balaoan, by virtue of which he was
registered as an elector of the said precinct, having made use of the right of
suffrage in said municipality in the general elections of 1925. In his cedula
certificates issued by himself as municipal treasurer of Balaoan from the year
1923 to 1928, included, he made it appear that his residence was the residential
district of Balaoan. In the year 1926, his wife and children who, up to that
time, had lived in the municipality of Balaoan, went back to live in the town of
Luna in the house of his wife’s parents, due to the high cost of living in that
municipality. Norberto Guray used to go home to Luna in the afternoons after
office hours, and there he passed the nights with his family. His children
studied in the public school of Luna. In January, 1927, he commenced the
construction of a house of strong materials in Luna, which has not yet been
completed, and neither he nor his family has lived in it. On February 1, 1928,
Norberto Guray applied for and obtained vacation leave to be spent in Luna, and
on the 16th of the same month he filed his resignation by telegraph, which was
accepted on the same day, also by telegraph. Notwithstanding that he was already
provided with a cedula issued by himself as municipal treasurer of Balaoan on
January 31, 1928, declaring him a resident of said town, he obtained another
cedula from the municipality of Luna on February 20, 1928, which was dated
January 15, 1928, in which it was represented that he resided in the barrio of
Victoria, municipality of Luna, Province of La Union. On February 23, 1928,
Norberto Guray applied for and obtained the cancellation of his name in the
election list of the municipality of Balaoan, and on April 14, 1928, he applied
for registration as a voter in Luna, alleging that he had been residing in said
municipality for thirty years. For this purpose he made use of the cedula
certificate antedated.
In view of the facts just related, the question arises whether
or not Norberto Guray had the legal residence of one year immediately prior to
the general elections of June 5, 1928, in order to be eligible to the office of
municipal president of Luna, Province of La Union.
There is no question but that when Norberto Guray accepted and
assumed the office of municipal treasurer of Balaoan, La Union, he transferred
his residence from the municipality of Luna to that of Balaoan.
The only question to determine refers to the date when he once
more established his residence in the municipality of Luna.
It is an established rule that “where a voter abandons his
residence in a state and acquires one in another state, he cannot again vote in
the state of his former residence until he has qualified by a new period of
residence” (20 Corpus Juris, p. 71, par. 28). “The term ‘residence’ as so used
is synonymous with ‘domicile,’ which imports not only intention to reside in a
fixed place, but also personal presence in that place, coupled with conduct
indicative of such intention.” (People vs. Bender, 144 N. Y. S., 145.)
Since Norberto Guray abandoned his first residence in the
municipality of Luna and acquired another in Balaoan, in order to vote and be a
candidate in the municipality of Luna, he needed to reacquire residence in the
latter municipality for the length of time prescribed by the law, and for such
purpose, he needed not only the intention to do so, but his personal presence in
said municipality.
By reason of his office as municipal treasurer of Balaoan and
on account of the rules of the provincial treasurer of La Union, under whose
jurisdiction was such municipality, Norberto Guray had to reside and in fact
resided in said municipality until the 16th of February, 1928, when he filed his
resignation from his office, which was accepted on the same date. The fact that
his family moved to the municipality of Luna in the year 1926 in order to live
there in view of the high cost of living in Balaoan; the fact that his children
studied in the public school of said town; the fact that on afternoons after
office hours he went home to the municipality of Luna and there passed the night
with his family, are not in themselves alone sufficient to show that from said
year he had transferred his residence to said municipality, since his wife and
children lived with his father-in-law, in the latter’s house, and that only in
the month of January, 1927, did he begin the construction of a house of strong
materials, which is not yet completed, nor occupied by himself or his family.
His afternoon trips to Luna, according to his own explanation given to the
provincial treasurer, were made for the purpose of visiting his sick father.
His own act in recording in his cedula certificates for the years 1927 and 1928,
issued by himself in his favor as municipal treasurer of Balaoan, that his place
of residence was that municipality, and in taking out a new cedula in the
municipality of Luna on February 20, 1928, and having the date of its issuance
surreptitiously put back to January 15, 1928, show that until the date of his
resignation he did not consider himself as a resident of the municipality of
Luna. The fact that his wife and children lived in Luna, not in his own house
but in that of his wife’s father since the year 1926, cannot be looked upon as a
change of residence, since a change of residence requires an actual and
deliberate abandonment of the former (20 Corpus Juris, p. 71) and one cannot
have two legal residences at the same time.
The present case is different from that of Doctor Apacible
cited by the appellee in his brief. Doctor Apacible never had abandoned his
legal residence in the Province of Batangas, notwithstanding that he had been
living with his family in the City of Manila, taking out his cedula certificates
here, but he never exercised the right of suffrage here. Norberto Guray
abandoned his legal residence in the municipality of Luna, transferring it to
the municipality of Balaoan by reason of his office of municipal treasurer of
said municipality and on account of the requirements of the rules of the
provincial treasurer of La Union, under whose jurisdiction is said municipality,
exercising his right of suffrage in the latter.
For the foregoing considerations, we are of opinion and so hold
that in fact and in law Norberto Guray only abandoned his legal residence in the
municipality of Balaoan, and began to acquire another in the municipality of
Luna from February 16, 1928, when he filed his resignation from the office of
municipal treasurer of Balaoan which he had been holding, and which resignation
was accepted; and on being elected municipal president of Luna in the general
elections of June 5, 1928, he had not reacquired the legal residence necessary
to be validly elected to said office.
By virtue whereof, the election of respondent-appellee Norberto
Guray to the office of municipal president of Luna is hereby held to be unlawful
and quashed and, in consequence, he has no right to take possession of said
office, petitioner Gregorio Nuval being the one legally elected to said office
with a right to take possession thereof, having secured second place in the
elections. With costs against the respondent. So ordered.
Avanceña, C. J., Ostrand, Johns, and Romualdez, JJ., concur.
Villamor, J., dissents.
RULING ON THE MOTION FOR RECONSIDERATION
February 1, 1929
VILLA-REAL, J.:
This is a motion praying for the reasons given that the
judgment rendered in this case on December 29, 1928 be reconsidered, and another
rendered affirming the judgment appealed from.
In regard to the grounds of the motion with reference to the
defence of res judicata, as the movant does not adduce any new argument in
support thereof, and inasmuch as this court has already discussed said question
at length, we find no sufficient reason to grant the motion on said grounds.
As to the other grounds touching this court’s holding that
Gregorio Nuval is the one who has been legally elected to the office of
municipal president of Luna, La Union, and entitled to take possession thereof,
having received second place, we consider them meritorious, for the reason that
section 408 of the Election Law, providing the remedy in case a person not
eligible should be elected to a provincial or municipal office, does not
authorize that it be declared who has been legally elected, thus differing from
section 479 of the said law, which contains such an authorization, and for the
reason, furthermore, that section 477 of the said law provides that only those
who have obtained a plurality of votes, and have presented their certificates of
candidacy may be certified as elected to municipal offices. Elective offices are
by nature different from appointive offices. The occupation of the first depends
on the will of the elector, while that of the second depends on the will of the
authority providing for it. In quo warranto proceedings referring to offices
filled by election, what is to be determined is the eligibility of the candidate
elect, while in quo warranto proceedings referring to offices filled by
appointment, what is determined is the legality of tine appointment. In the
first case when the person elected is ineligible, the court cannot declare that
the candidate occupying the second place has been elected, even if he were
eligible, since the law only authorizes a declaration of election in favor of
the person who has obtained a plurality of votes, and has presented his
certificate of candidacy. In the second case, the court determines who has been
legally appointed and can and ought to declare who is entitled to occupy the
office.
In view of the foregoing, we are of opinion that the judgment
rendered in this case on December 29, 1923, should be, and is hereby, amended,
eliminating from the dispositive part thereof, the holding that Gregorio Nuval
is the one who has been legally elected, so as to read as follows:
“By virtue whereof, the election of respondent-appellee
Norberto Guray to the office of municipal president of Luna, is hereby declared
unlawful and quashed and, consequently, that he has no right to take possession
of said office, with costs against said respondent.” So ordered.
Avanceña, C. J., Malcolm, Ostrand, Johns, and Romualdez, JJ.,
concur.
DISSENTING
VILLAMOR, J.:
In consequence of my dissenting opinion from the decision in
this case, I am compelled to dissent likewise from the ruling on the motion for
reconsideration. And I take this opportunity of stating the grounds of my
dissent. In the opinion promulgated on December 29, 1928, among other things,
the following was stated: “Proceedings were had upon the petition in accordance
with sections 437 and 438 of the same Code, as amended by Act No. 3387, and
Judge E. Araneta Diaz, rendered judgment dismissing it because, in his opinion,
Norberto Guray was a bona fide resident of the municipality of Luna from January
1, 1927. As that order was not appealable, Norberto Guray’s name remained in the
election list of the municipality of Luna.”
The same decision states: “In said case of the petition for the
exclusion, the object of the litigation, or the litigious matter was the
exclusion of Norberto Guray as a voter from the election list of the
municipality of Luna, while in the present quo warranto proceeding, the object
of the litigation, or the litigious matter is his exclusion or expulsion from
the office to which he has been elected. Neither does there exist, then, any
identity in the object of the litigation, or the litigious matter.
“In said case of the petition for exclusion, the cause of
action was that Norberto Guray had not the six months legal residence in the
municipality of Luna to be a qualified voter thereof, while in the present
proceeding of quo warranto, the cause of action is that Norberto Guray has”
not the one year’s legal residence required for eligibility to the office of
municipal president of Luna. Neither does there exist, therefore, identity of
causes of action.”
Further on, it states: “In the year 1926, his wife and children
who, up to that time had lived in the municipality of Balaoan, went back to live
in the town of Luna in the house of his wife’s parents, due to the high cost of
living in that municipality. Norberto Guray used to go home to Luna in the
afternoons after office hours, and there he passed the nights with his family.
His children studied in the public school of Luna. In January, 1927, he
commenced the construction of a house of strong materials in Luna, which has not
yet been completed, and neither he nor his family has lived in it. On February
1, 1928, Norberto Guray applied for and obtained vacation leave to be spent in
Luna, and on the 16th of the same month he filed his resignation by telegraph,
which was accepted on the same day, also by telegraph. Notwithstanding that he
was already provided with a cedula issued by himself as municipal treasurer of
Balaoan on January 31, 1928, declaring him a resident of said town, he obtained
another cedula from the municipality of Luna on February 20, 1928, which was
dated January 15, 1928, in which it was represented that he resided in the
barrio of Victoria, municipality of Luna, Province of La Union. On February 23,
1928, Norberto Guray applied for and obtained the cancellation of his name in
the election list of the municipality of Balaoan, and on April 14, 1928, he
applied for registration as a voter in Luna, alleging that he had been residing
in said municipality for thirty years. For this purpose he made use of the
cedula certificate antedated.”
Considering the facts thus related in the majority opinion, I
believe that, setting aside technicalities, the question of the residence of the
protestee-appellee Guray was decided by the court holding that he was a bona
fide resident of the municipality of Luna, since January 1, 1927. I believe it
is plain that Norberto Guray’s residence follows him as the shadow follows the
body that casts it, whether it be in his capacity as voter, or in his
eligibility for the office of municipal president. The fact is that the Court of
La Union found Guray to be a bona fide resident of the municipality of Luna
since January 1, 1927. From that date until the general elections (June 5,
1928), I believe more than one year has elapsed and, consequently, Guray had the
legal residence of over one year at least, in the municipality of Luna at the
time of his election as municipal president.
In this jurisdiction the courts have ever looked upon residence
as purely a matter of intention, manifested by the acts, conduct and
circumstances of the person choosing a place as his permanent dwelling place and
home. It was so understood by the Philippine Commission in discussing the first
election law, whose provisions upon the residence of voters and eligibles have
not been amended up to the present time. The domicile or legal residence has
been defined as the place where a person has a principal house or habitation, or
where he keeps his family and his chief place of business. The intention in
every case is the real object of investigation. If a man leaves his town and
removes to another by reason of his business, but with the intention to return
to it, he has not lost his residence in said town. The mere change of dwelling
place does not involve a change of residence if it be not accompanied by
intention. Hence it has been held that if one has removed to another town solely
by virtue of his appointment as municipal treasurer, but with the intention to
return to his original town, he has not lost his residence in his original town.
The words good faith accompanying the word residence must be taken as a
description of the state of mind of the person claiming residence. For example,
if a man removes to a province with the sole object of remaining one year in
order to become a candidate for the governorship, he may be held to be a
resident in bad faith, while he may be bodily absent from the province for a
long time and yet have in his mind the constant intention to return. If it be
so, he would be a resident in good faith of the place he had left.
It is
evident that bodily presence in a place, accompanied by the intention to live
therein forever, establishes domicile or residence. But bodily presence in a
place is not residence; it is a mere proof, strong proof, if you wish, tending
to demonstrate residence. At most, personal presence is presumptive proof that a
person intends to reside where he is. But such a presumption may be rebutted by
other acts, conduct, and circumstances of the person, clearly showing his
intention to establish his home elsewhere. The herein protestee-appellee Guray,
at least since January, 1927, kept his family in the municipality of Luna, he
went there at night to sleep with them, his children studied in the public
school of said municipality, and he had a house of strong materials built in
Luna, although it was not yet completed, as stated in the majority opinion. But
all these acts show his intention to establish his legal residence in the
municipality of Luna.
The fact of having paid his personal cedula in
Balaoan is of trivial importance in showing legal residence, for, as
Governor-General Smith said in the resolution of the protest against the
election of the provincial governor of Batangas, Apacible, hundreds of persons
have taken out their cedulas outside of their residential province without
having lost their legal residence as a result thereof. Governor-General Smith
himself, who lived nine years in the Philippines, and took out his cedula in
Manila, had his residence in San Francisco, California, because his intention
was to go back and live there permanently.
There is no further need of amassing citations, but let a
recently decided case be remembered, namely, the quo warranto proceeding of Ira
vs. Abaño (p. 380, ante). The facts in that case are: Maximo Abaño is a native
of the municipality of Meycauayan, Bulacan. At the competent age he removed to
Manila to complete his education. While living temporarily in Manila, Abaño
registered as a voter there. Shortly after having been admitted to the bar and
after the death of his father, Abaño went back to live in Meycauayan. From May
10, 1927, up to the present Abaño has considered himself a resident of
Meycauayan. When in 1928 the elections were about to be held, he filed a
petition for the cancellation of his registration in Manila, which was dated
April 3, 1928, but his petition was denied by the city officials because it had
not been deposited in the mails on or before April 4, 1928. Nevertheless, Abaño
presented himself as a candidate for the municipal presidency of Meycauayan in
the 1928 elections and was by popular vote elected thereto. In that case it was
held:
“1. A candidate who was elected to the office of municipal
president and who at the time of the election was registered as a voter of
Manila and not of the municipality in which he was a candidate, is nevertheless
eligible to the office, and proceedings in the nature of quo warranto instituted
by virtue of the provisions of section 408 of the Election Law, as amended, by
the vice-president elect of the municipality, who challenged the right of the
municipal president elect, to the position to which elected on the ground that
the municipal president was ineligible, cannot be successfully maintained.“2. The Election Law makes use of the terms ‘qualified voter in
his municipality,’ and ‘qualified elector therein.’ To be a qualified voter,
does not necessarily mean that a person must be a registered voter. It is
sufficient for the candidate to possess all of the qualifications prescribed in
section 431 and none of the disqualifications prescribed in section 432. The
fact that a candidate failed to register as an elector in the municipality does
not deprive him of the right to become a candidate and to be voted for.“3. One may be a qualified voter without exercising the right
to vote. Registering does not confer the right; it is but a condition precedent
to the exercise of the right. Registration regulates the exercise of the right
of suffrage. It is not a qualification for such right.“4. The question of residence for the purposes of the Election
Law is largely one of intention.”
In another, and a yet more recent case (Vivero vs. Murillo, G.
R. No. 30271)[1], it was held: “A student living with his parents in a certain
barrio of a municipality, which barrio is later separated to be organized as an
independent municipality, who for several years pursues his studies in several
provinces of the archipelago, supported by his parents, returning to the
latters’ home during his vacations in the newly organized municipality, does not
lose his residence in said municipality, either on account of having resided in
different provinces as a student, or of having registered as a voter in the
former municipality and is eligible as municipal president of the new
municipality even if his registration as a voter in the municipality to which
the new one originally belonged has not been cancelled.”
The same view of the question of legal residence has been
sustained by the Philippine Assembly in the protest against the election of the
representative of the southern district of Manila, Fernando Guerrero, and in
that of the representative for the second district of Manila, Luciano Cinco.
(Journal of Sessions of the Assembly, December 6,1917, and November 29, 1927,
respectively.)
Wherefore, I am of opinion that the motion for reconsideration
should be granted on the ground that the protestee and appellee had the legal
residence to become eligible to the office of the municipal president of tine
municipality of Luna. With respect to the second ground of the motion for
reconsideration, I agree with the majority opinion that a candidate who received
second place in the election cannot be declared elected to said office simply
because the one who received first place turned out to be ineligible.
Judgment of December 29, 1928, modified.
[1] P. 694, post.