BASILIO YALUNG, PROTESTANT AND APPELLEE, VS. FELIX ATIENZA, PROTESTEE AND APPELLANT.

The protestee Felix Atienza appeals to this court from the judgment
of the Court of First Instance of Tarlac holding that in the general
elections held on June 5, 1928, in the municipality of Capas, Province
of Tarlac, the protestant Basilio Yalung obtained 238 votes, and the
protestee Felix Atienza alias Puguion 232 votes, that is, a
majority of 6 votes in favor of the former, for the office of municipal
president of Capas, with the right to assume said office; with costs
against the aforesaid protestee.

In support of his appeal, the appellant assigns eleven alleged
errors as committed by the court below in its judgment, which we shall
consider in the course of this decision.

The following are the pertinent and necessary facts for the solution of the questions raised in the instant appeal:

In the general elections held on June 5, 1928, Felix Atienza and
Basilib Yalung were, among others, registered candidates voted for the
office of municipal president of Capas. After the voting and the
canvass of the ballots by the municipal board of canvassers, Felix
Atienza obtained 236 votes, and Basilio Yalung 234, that is, a
difference of two (2) votes in favor of the former, who was proclaimed
elected to the office of municipal president of Capas, Tarlac.

Dissatisfied with this result Basilio Yalung in due time filed a
motion of protest alleging, among other things, essential facts
constituting fraud and irregularities in the adjudication and canvass
of the ballots without which the protestant would have obtained a
majority of more than fifty (50) votes over the protestee Felix Atienza
for the office of municipal president of Capas.

The court below having acquired jurisdiction to try the contest by
virtue of said motion, pursuant to a proposal by the parties, appointed
commissioners to examine and recount the ballots contained in the
ballot boxes of precincts Nos. 1, 2 and 4 of the municipality of Capas.

Having performed their task in accordance with the instructions of
the court, said commissioners submitted the corresponding report.
Having considered the same and heard the parties upon the contested
ballots, the court below rendered the judgment referred to above.

As to the first assignment of error, the motion of protest having
alleged that frauds and irregularities were, committed in precincts
Nos. 1, 2 and 4 of the municipality of Capas, Province of Tarlac, and
the trial court having ordered the opening of the ballot-boxes of said
precincts, the latter had to proceed either by itself or by means of
commissioners to the examination of the ballots and other documents
contained in said boxes, in accordance with the provisions of section
479 of the Election Law, in order to determine whether the frauds and
irregularities alleged in the motion were committed. ‘Inasmuch as it is
not necessary to specify in detail in the motion of protest in which of
the ballots the frauds and irregularities were committed, such a
procedure being well-nigh impossible, and it being enough to allege in
what the fraud and irregularity consisted, and that had it not been for
such anomalies, the result of the election would have been otherwise,
all of which have been alleged in the motion of protest in question,
the court or the commissioners appointed by the same may revise all the
ballots, admitting the valid and legal ones and rejecting the others,
with a view to arriving at the lawfully expressed will of the electors.
The institution of popular suffrage is one of public interest and not a
private interest of the candidates, so that if in the revision of the
ballots some illegal ballots are found which have not been specifically
impugned in the motion of protest, the court may reject them motu proprio,
since it is not essential that the contestant set forth the grounds of
his contest with the same precision required of a pleading in ordinary
civil cases (20 Corpus Juris, 227).

In the case of Lucero vs. De Guzman (45 Phil., 852), this court stated the following:

“The purpose of the legislature In declaring that contests should
not be conducted upon pleadings or by action was to free the courts as
far as possible from the technicalities incident to ordinary proceeding
by action and to enable the courts to administer justice speedily and
without complication.”

The trial court, then, did not err in taking into account in the
revision of the ballots, irregularities not set forth in the motion of
protest.

In the second assignment of error the appellant impugns the appealed
judgment in rejecting the ballot marked 1— Atienza of precinct No. 2 of
the municipality of Capas as void with respect to said appellant,
because in the column for the municipal president there is written only
the Christian name “Felix.” The lower court did not commit the error
assigned to it in its judgment, according to the doctrine laid down by
this court in the case of Cailles vs. Gomez and Barbaza (42
Phil., 496), “a Christian name without the surname is not sufficient to
identify the intention of the voter.”

In ballot A-l—Atienza of precinct No. 4 of the municipality of
Capas, which was rejected by the trial court and which the appellant in
his third assignment of error contends is an error, there appears
written in the column for municipal president, the name of “Jusi
Atinza.” As the Christian name of the candidate of the same surname for
the office of municipal president of Capas is “Felix,” the word “Jusi”
cannot, even remotely be considered as an attempt of the voter to write
the name “Felix” and consequently the rule of idem sonans cannot be applied, and the ballot must be rejected as a vote in favor of Felix Atienza.

The third assignment of error, and its corollary, the fourth assignment therefore lacks merit.

In the fifth and sixth assignments of error it is contended by the
appellant that the admission of the ballot A-1—Yalung of precinct No. 2
of the municipality of Capas in favor of the appellee Basilic Yalung
was an error for the reason that said ballot was found in the
spoiled-ballot box, and citing in support of such contention the
doctrine laid down in the case of Lucero vs. De Guzman (45 Phil., 852).

This ballot was deposited by the election inspectors in the
spoiled-ballot box, not because it was spoiled, since it does not Bear
the words “spoiled ballot” as required by section 454 of the Election
Law, but because in the column for municipal president appears a little
slanting pencil line which the inspectors considered as a
distinguishing mark and hence rejected the ballot as marked. Said
ballot cannot be considered spoiled, and its deposit in the
spoiled-ballot box was due to an error. (Mandac vs. Samonte, 49 Phil., 284.)

Nor may such a ballot be considered as marked according to section
463 of the said Election Law, because that small line does not, either
by its form or circumstances, indicate an intention to identify the
same. (Cailles vs. Gomez and Barbaza, 42 Phil., 496.)

Since ballot A-1—Yalung is valid and as it was deposited in the
spoiled-ballot box by mistake, the trial court did not err in counting
it in favor of the protestant-appellee Basilio Yalung (Mandac vs. Samonte, 49 Phil., 284; Valenzuela vs. Carlos and Lopea de Jesus, 42 Phil., 428; Cailles vs. Gomez and Barbaza, 42 Phil., 496; Lino Luna vs. Rodriguez, 89 Phil, 208; Lucero vs. De Guzman, 45 Phil., 852).

As to the ballots Exhibits A—Yalung and B—Yalung of precinct No. 4
of Capas, contested in the seventh assignment of error by the
protestee-appellant as votes in favor of the protestan-appellee Basilio
Yalung, for the reason that after the Christian names, the initials of
the names and surnames in ballot A—Yalung there are periods and commas,
and at the end of the surnames of some candidates in ballot B—Yalung
there are some little lines, they are perfectly valid inasmuch as they
do not by themselves alone constitute marks of identification,
following the doctrines laid down in the cases of Valenzuela vs. Carlos and Lopez de Jesus, and Cailles vs. Gomez and Barbaza, above cited.

With respect to ballot 1-A—Yalung, in which the name of Basilio
Yalung is written in the last column for members of the provincial
hoard, and ballot 2-A—Yalung, wherein the name of Basilio Yalung is
written in the column for vice-president, impugned by the
protestee-appellant as votes in favor of the protestant-appellee, they
must be deducted from the latter’s votes, for his name is not written
in the column for municipal president. And with respect to ballot
8-A—Yalung, likewise contested by the protestee-appellant as a vote in
favor of the protestant-appellee, Basilio Yalung it must be admitted
because the latter’s name is written in the column for the office of
municipal president (Lucero vs. De Guzman, 45 Phil., 852).

Touching the tenth assignment of error, the ballot marked with the
letter “M” must be held illegal and void, because the name “Felix” and
the surname “Atienza” are written in capital letters, whereas the other
names are in ordinary writing, showing ability to write. This manner of
writing the name and surname in capital letters cannot mean anything
else than that the voter or the one helping him to write out his ballot
intended to put a distinguishing mark thereon by which to identify the
voter.

Ballots M-1, M-2 and M-3 mentioned in the same assignment of error
are valid because in Exhibits M-l and M-3, although some of the names
and surnames are written in capital letters, it is evident that the
voter desired to attain greater clearness, and in M~2, the whole ballot
is written out in the same manner. As it does not clearly and
positively appear that said manner of writing was adopted by way of
identification, said ballots must be deemed valid.

Summarizing, we have it that of the 238 votes adjudicated to Basilio
Yalung in the appealed judgment, ballots 1-A— Yalung and 2-A—Yalung of
precinct No. 4 of the municipality of Capas, Tarlac must be deducted,
thus reducing the votes adjudicated to him to 236; and to the votes
adjudicated to Felix Atienza must be added ballots M-1, M-2 and M-3,
increasing his votes to 235, thus reducing Basilio Yalung’s majority
over Felix Atienza from six votes to one.

By virtue whereof, and with the above-mentioned modification, the
judgment appealed from is affirmed, with costs against the appellant.
So ordered.

Johnson, Street, Malcolm, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.

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March 7, 1929

VILLA-REAL, J.:

This
is a motion presented by Felix Atienza praying for the reasons therein
alleged, that the judgment of this court of February 14, 1929 be set
aside, and another rendered rejecting ballot 8-A-Yalung, and deducting
it from Basilio Yalung’s vote, and admitting ballot A-1-Atienza, adding
it to his votes.
After again reviewing the ballots which are the
subject-matter of the motion for reconsideration, we have found that
ballot 8-A-Yalung must be rejected as a vote in favor of the protestant
Basilio Yalung, because in the same space for municipal president is
also written the name of Meliton Bagay, another duly registered
candidate for said office, in accordance with the doctrine laid down by
this court in the case of Cailles vs. Gomez and Barbaza (42 Phil.,
496), that “when there are two names voted for the same position for
which the law authorizes the election of only one person, the ballot
should not be counted in favor of any of those voted for.”

As
to the ballots Exhibits M and A-1-Atienza, claimed by Felix Atienza as
votes in his favor, we do not find sufficient reason to change the
conclusions reached in our original decision with respect to them.

Inasmuch as in our original decision we adjudicated 236 votes to
Basilio Yalung and 235 to Felix Atienza, with a majority of one vote in
favor of the former, deducting 1 vote from the 236 adjudicated to
Basilio Yalung, the result would be that the latter would have the same
number of votes as adjudicated to Felix Atienza, or a tie, which must
be resolved by the said two candidates drawing lots in accordance with
the provisions of the third paragraph 0 section 477 of the Election Law.

By
virtue whereof, the judgment of this court in this rendered on February
14, 1929, is amended, and the election between the protestant and
protestee is hereby declared a tie, and it is ordered that they draw
lots in the presence of the Court of First Instance of Tarlac, with
costs against the loser therein. So ordered.

Johnson, Street, Johns, and Romualdez, JJ., concur.
Malcolm and Ostrand, JJ., dissent.