VICENTE OLANO, PROTESTANT AND APPELLANT, VS. BERNARDINO TIBAYAN, PROTESTEE AND APPELLEE.

This is an appeal taken by the protestant, Vicente Olano, from the
judgment of the Court of First Instance of Cavite holding that the
protestee, Bernardino Tibayan, obtained 261 legal votes in the general
elections held on June 5, 1928, and he obtained 227 legal votes, for
the office of municipal president of the municipality of Ternate,
Cavite, the former having been elected with a plurality of 34 votes
over the latter.

In support of his appeal, the appellant assigns the following errors
alleged to have been committed by the trial court in its decision, to
wit:

“1. That the lower court erred in rejecting the 35
ballots of the protestant, Vicente Olano, in precinct No. 3 of Ternate,
16 of which were placed in envelope K, and 19 in envelope L, on the
alleged ground that each of these two groups were prepared by one
person, notwithstanding the fact that this question was not raised by
either of the parties in this case at the trial, or even in their
pleadings. And it likewise erred in having rejected them without a
sufficient legal ground.

“2. That the lower court erred in rejecting four other ballots prepared and voted in favor of the protestant, Vicente Olano.

“3.
That the lower court erred in not rejecting at least 53 ballots cast in
favor of the protestee, Bernardino Tibayan, notwithstanding that the
same were prepared by Ciriaco Ramos, Placido Ramos, Daniel Tibayan, and
Valentin Leonora, and other unknown persons, outside the polling-place
in the three election precincts of Ternate, making use of false
ballots. And it likewise erred in counting and adjudicating 3 other
ballots to the protestee, two of which were marked and the third was
not filled out in his favor.

“4. That the lower court erred
in not declaring that the protestant, Vicente Olano, elected municipal
president of Ternate with a plurality of at least 37 ballots over the
protestee, Bernardino Tibayan, despite the frauds committed by the
latter, making use of false or unofficial ballots and other unlawful
means.

“5. That the lower court erred in not ordering in its
judgment the prosecution of those persons who prepared the various
ballots both official and unofficial cast in favor of the protestee,
Bernardino Tibayan, outside of the three polling-places of Ternate, as
proven at the trial.

“6. That the lower court erred in
declaring the protestee, Bernardino Tibayan, elected municipal
president of Ternate, and in sentencing the protestant to pay the
costs, instead of holding to the contrary.”

As to the first assignment of error, there is no question that the
sixteen (16) ballots of precinct No. 3 of Ternate, placed in envelope
K, wherein the name of the protestant Vicente Olano appears in the
space for municipal president were filled out by one person, and that
the nineteen (19) ballots of the same precinct placed in envelope L, in
which also the name of the aforesaid protestant Vicente Olano appears
in the space for the municipal president, were also written by one hand.

The fact that neither of the parties raised the question of the
illegality of said ballots either at the trial or in their pleadings,
does not deprive the trial court of jurisdiction to examine them, for
as this court held in the case of Yalung vs. Atienza (52
Phil., 781), recently decided, the institution of suffrage is a public
and not a private interest, and the trial court may examine all the
ballots after the ballot boxes are opened in order to determine which
are legal and which are illegal, even when neither of the parties has
raised any question as to their illegality.

As to the admissibility of the 35 ballots in question the evidence
shows that they were found in the valid-ballot box, counted for and
adjudicated to the protestant-appellant, Vicente Olano, by the board of
inspectors. Their legality has not been attacked by the
protestee-appellee, Bernardino Tibayan, either in his answer to the
protest motion or during the trial of the case in the court below. It
has not been proven that their insertion in said box was fraudulent nor
that their preparation was part of a scheme to thwart the free
expression of the voters’ will. The mere fact that each group of
ballots appears to be written by one man is not, in itself, sufficient
to destroy the presumption of their legality, arising from their being
found in the valid-ballot box in which they were deposited in the
presence of the inspectors or watchers for the contending candidates.
It might be that the voters who cast their votes were incapacitated,
and had been assisted in the preparation of their ballots by two
unauthorized persons in the polling-place, but this fact alone is not
enough to invalidate the aforementioned 35 ballots, when it does not
appear that such irregularity was part of a scheme devised to
adulterate the suffrage. (Valenzuela vs. Carlos and Lopez de Jesus, 42 Phil., 428; Cailles vs. Gomez and Barbaza, 42 Phil., 496.)

In view of the foregoing considerations, we arrive at the conclusion
that the lower court erred in rejecting the 35 ballots discussed in the
first assignment of error, and in not adjudicating them to the
protestant-appellant, Vicente Olano.

Having reached this conclusion we deem it unnecessary to consider
the other assignments of error inasmuch as the judgment appealed from
adjudicated to the protestee-ppellee, Bernardino Tibayan, a plurality
of 34 votes over the protestant-appellant and as 35 votes must be added
to the latter, it results in a plurality of one vote in favor of said
protestant-appellant, Vicente Olano, over the aforementioned
protestee-appellee, Bernardino Tibayan.

By virtue whereof, the judgment appealed from is reversed, and it is
held that Vicente Olano obtained 262 legal votes for the office of
municipal president of the municipality of Ternate, Province of Cavite,
in the general elections held on June 5, 1928, and Bernardino Tibayan
obtained 261, thus leaving a majority of one vote in favor of the
former, who must be declared, as he is hereby declared, elected
municipal president of said municipality, with costs against the
appellee. So ordered.

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