GREGORIO J. BORJA, CONTESTANT AND APPELLEE, VS. MANUEL H. ROXAS, CONTESTEE AND APPELLANT.

This case relates to the election for the office of municipal president of
Jalajala, Province of Rizal. Manuel H. Roxas, the contestee, appealed from the
decision rendered by the Court of First Instance of that province, the
dispositive part of which reads as follows:

“Wherefore, it is held that at the general elections of June 2,1931 the
contestant Gregorio J. Borja obtained one hundred and seven (107) lawful votes
as against the contestee Manuel H. Roxas who only obtained ninety-two (92), both
of them being candidates for the office of municipal president of Jalajala,
Rizal; * * * and everything, with costs and incidental expenses in favor of the
contestants herein and against the herein contestees, Manuel H. Roxas and
Alejandro Felix.

“Let a copy of this judgment be sent to the municipal council of Jalajala,
Rizal, in order that it may, as municipal board of canvassers, correct its
election returns of the general elections held on June 2, 1931, in accordance
with this decision, and proclaim those persons elected who are mentioned in the
dispositive part hereof. * * *”

At the general elections held on June 2, 1931, the contestant Gregorio J.
Borja and the contestee-appellant Manuel H. Roxas were rival candidates for the
office of municipal president of Jalajala, Province of Rizal. The former
belonged to the Democrata Party while the latter was affiliated with the
Nacionalista-Consolidado Party and both of them had been chosen by their
respective groups. On June 3d of the same year, after all the legal votes cast
in the only two precincts within the municipality had been counted, the
municipal council of Jalajala, acting as the municipal board of canvassers,
declared through resolution No. 25, series of 1931, that the appellee Borja had
obtained 107 votes and the appellant Roxas 130, proclaiming the latter municipal
president elect.

The appellee contested the appellant’s election alleging, among other
grounds, that 32 votes had been counted for him which were included in 56
illegal votes cast by persons who had been declared not entitled to vote or take
part in the election. With regard to this point, both parties admit and the
court .held that through proceedings taken prior to June 2,1931, fifty-six
electors had been excluded from the voters’ list; but although due notice
thereof was served on the election inspectors, a majority of them allowed
thirty-two of those excluded electors to take part, and in fact, they did vote
on the day of the election. Based on this fact which was admitted by both
parties, the court deducted the 32 illegal votes from the total number obtained
by the appellant Roxas, thereby resulting a plurality of 15 votes in favor of
the appellee Borja.

The whole question is whether the court acted
correctly in excluding the 32 votes illegally cast, from the appellant’s votes,
and whether such action is supported by any competent and convincing evidence.
The evidence considered by the court, and upon which its finding is based
entirely, is
circumstantial, because as a matter of fact, neither party
adduced direct evidence. Said evidence is as follows:

” (1) In the southern part of this Province of Rizal, there is a large estate
known as Jalajala, and within said estate is the municipality of Jalajala.

“(2) The estate belongs to the Borja family, from Pateros, Rizal, and one of
the coowners is the contestant Gregorio J. Borja.

“(3) When application was filed for the registration of the title to the
estate, not a few of the occupants presented an opposition, and many of them
left the place going else where when the rights of the applicants were
recognized by law and the judgments to that effect were executed.

“(4) During the period preceding the election, and with a view to the last
general election, the partisans of contestant Borja obtained from this court
decisions prohibiting some fifty-six electors from noting, who had been
opponents in the registration proceedings of the estate.

“(5) Copies of these judgments were furnished the election inspectors in the
two precincts of said municipality of Jalajala, some days before June 2, 1931,
when the last general” election took place.

“(6) The majority of those inspectors were Nacionalista partisans, although
by inclination or sentiment, fictitious or real, they are Communists, for these,
among other, reasons: (a) That the then municipal president—who has, perhaps (or
without perhaps), had a hand in their appointment—officially announced his
candidacy for the governorship of this province in representation of the
Communist Party; and (6) that the contestee Manuel H. Roxas was announced by the
Communist paper Titis (Exhibit G), as candidate for representative of the second
district of this Province of Rizal, .although, after all was said and done, he
decided to be the Nacionalista candidate for the presidency of that
municipality, and was officially announced
as such.

“(7) On the day of the election, thirty-two (32) out of those fifty-six
electors with judgments against them, succeeded in voting in those two
precincts, over the objection of the minority inspector who belongs to the
Democrata Party, upon the specious ground that their names were already in the
voters’ lists. (Exhibits D, D-1, and E.)

* * * * * * *

“As may be seen, had there been no manifest disobedience to the orders of
this court, there would have been no reason for the protest of the petitioners
herein with regard to the result of the election; but as thirty-two (32) people
voted at the election without being entitled to do so, their votes must be
deducted from the number obtained by the respondents herein, for it can hardly
be conceived, in the opinion of the court, that those electors voted for the
contestants and their partisans.”

It follows, therefore, that in finding that the 32 illegal votes were cast
for the appellant, and in excluding them from the total number obtained by him,
the court relied exclusively upon these facts established by purely
circumstantial evidence: (a) That in the municipality of Jalajala there
was a large estate belonging to the appellee and others; (b) that when
these applied for the Torrens title to said estate, a number of persons opposed
the registration; (c) that the fifty-six electors excluded were among
those opponents; (d) that those fifty-six electors had been excluded at
the instance of the appellee’s partisans; (e) that the majority of the
election inspectors were Nacionalistas, though of Communistic inclinations, and
only one was a Democrata; (f) that the appellant was a candidate of the
Nacionalista party but allowed himself to be announced by the Communist paper
Titis as a candidate for representative of the second district of the Province
of Rizal; and (g) that the thirty-two voters who voted illegally did so
over the protest and objection of the Democrata inspector.

After carefully considering this aspect of the case, we are of the opinion
that such circumstantial evidence is insufficient to lead us to the reasonably
convincing conclusion that the aforesaid thirty-two illegal voters voted for the
contestee-appellant. The necessary and sufficient circumstantial evidence in
this case must be such that it should not lead to any other reasonably
convincing conclusion than that such votes were cast for the appellant. The
circumstance that those thirty-two excluded voters were among the opponents in
the registration proceeding filed by the appellee; that they were so excluded
from the voters’ list at the instance of the appellee’s partisans, and that the
majority of the election inspectors were Nacionalistas with Communistic
tendencies, does not constitute sufficient ground for reasonably, and without
prejudice, believing that they all voted for the appellant, who was himself a
candidate for the Nacionalista-Consolidado Party. To believe otherwise would be
to admit that the voter is guided by selfish and partisan feelings, and that in
casting his vote he follows neither his reason nor his own convictions.

The rule uniformly established in cases of this sort is that the party
alleging that a certain number of illegal votes have been cast in favor of a
candidate must adduce the best evidence to prove it, and clearly the best
evidence, here would have consisted in the identification of the illegal ballots
and the testimony of the voters who prepared them, which the contestant-appellee
did not do in this case.

“* * * where the ballots cast by the illegal voters can be identified they
should of course be rejected. Ordinarily, however, it is impossible to identify
the ballots except through extrinsic evidence, and so the question must be
solved by determining who the illegal voters were and then ascertaining how they
voted. In this proceeding it is clear that the voter is in the best position to
know for whom he voted, but circumstantial evidence is also competent to prove
that fact; and where the facts and circumstances from which the finding is made
are clearly established, and the inference is the only one which can fairly and
reasonably be deduced therefrom, the court should not hesitate to act on
circumstantial evidence and therefrom find the ultimate fact. * * * ” (9 R. C.
L., sec. 141, pp. 1149-1150.)

It is suggested in the appellee’s brief that the burden of proving in whose
favor the &2 illegal votes were cast rested upon the appellant, as
contestee, and that having failed to adduce competent evidence upon this point,
he must suffer the consequence of such omission, by having the 32 votes deducted
from him. We cannot approve this proposition, because in our opinion, it is not
the true and best doctrine. Although this rule was followed in one case, we are
convinced that the weight of authority holds that he who alleges that illegal
votes have been cast must prove his allegation, and show, furthermore, that
those votes were cast for his
opponent.

“Upon the theory that the illegal voter can be called as a witness and
compelled to disclose for whom he voted (which is beyond doubt the true theory),
it would be easy in such a case as the one stated to call the illegal voters and
require them to testify to the fact. It still remains, however, a question
whether they shall be called at the instance of the contestant upon the theory
that the burden of proof is upon him to make out his case, or at the instance of
the respondent upon the theory that because he is advantaged by the general
result he must show that all illegal votes were cast for his opponent or suffer
them to be deducted from his own vote. The court adopted the latter theory, but
we think the safer rule would be for the contestant to show not only that a
certain number of illegal votes were polled, but also to show, if he can, that
they were cast for his opponent. It is not intended by this to assert that the
rule above quoted from Duffey’s case is positively erroneous, but only to
intimate a doubt, and to express the opinion that the ordinary principle which
requires the party holding the affirmative to prove the facts, and all the
facts, necessary to make out his case, is the better rule, and that it will in
all cases be safer to follow it. * * *” (McCrary on Elections, 4th edition, pp.
367-368.)

Inasmuch as it has been shown that 32 illegal votes were cast for the office
of municipal president and that the evidence does not show for which of the two
candidates they were cast, the election for that office is quashed because the
number of illegal votes is sufficient to affect and alter the final result. In
this connection we have not lost sight of the theory, upheld by some courts,
that in such cases the illegal votes may be divided proportionately among the
candidates; but we have arrived at the firm conviction that such a practice is
not the best rule, nor is it supported by the weight of authority. When, for
some reason or other, it cannot be determined for whom the illegal votes have
been cast, and the number of such votes alters the result of an election, the
same must be quashed with respect to the disputed office.

“* * * An election cannot be allowed by law to depend on an uncertainty. The
majority must be susceptible of proof. Accordingly the general .rule has been
established that the reception of illegal votes at an election does not affect
its validity unless it is shown that their reception affected the result; but
that where so many persons vote in violation of the law that the result is
placed in doubt if the illegal votes are excluded, the court should annul the
election. * * *” (9 R. C. L., sec. 140, p. 1148 and cases therein cited.)

“While it is well settled that where enough illegal votes are cast at an
election to change the result or leave it in doubt the election is void, yet it
is equally well settled that the result of an election will not be disturbed
because of illegal votes received unless the aggregate of such votes would
change the result. * * *” (20 C. J., sec. 224, p. 182 and cases therein
cited.)

The appellant’s contention, contained m his first assignment of error, that
the 32 illegal votes should not be deducted because the orders of exclusion
issued by the court arrived two or three days before the election, but after the
last day fixed by law for the revision of the voters list, is unfounded. Section
437 of the Revised Administrative Code, which treats of the exclusion of names
from the voters’ list does not fix any period within which the court must issue
the order and give notice to the inspectors; it does provide that the
application for exclusion must be decided without delay, and that the decision
should be communicated to the parties interested. Section 438 provides that upon
receipt of a petition for inclusion or exclusion, the date and hour of its
filing must be noted, and that the courts taking cognizance thereof must decide
it within ten days thereafter. In default of allegation and proof that the order
or orders of exclusion were issued, and notice thereof given, with unnecessary
delay and outside the ten days fixed, it must be presumed that they were
promulgated in accordance with law, and that notice thereof was given the
inspectors within the legal period and as soon as the application or
applications for exclusion and the evidence submitted by the parties had been
duly considered by the court. Whereas, the law contains no positive provision
declaring the orders of exclusion so issued illegal, and whereas it appears that
they were received by the inspectors in time, several days before the election,
it is held that such orders issued for the purpose of excluding the thirty-two
voters in question, were valid, that the inspectors were in duty bound to
correct the lists in conformity therewith, and that they should not have
permitted them to vote.

Wherefore, the judgment appealed from is reversed, and it is held that
neither of the contending candidates has been legally elected to the office of
municipal president of Jala-jala, Province of Rizal, and that the election for
such office is quashed. In accordance with the provisions of section 483 of the
Election Law, let a certified copy of this judgment be sent to the chief of the
Executive Bureau and to the provincial board of Rizal.

One half of the costs and legal expenses of the first instance ands, those of
this appeal shall be defrayed by appellant and appellee in equal parts. So
ordered.

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

---

STREET, VILLAMOR, and OSTRAND, JJ.

Accepting the facts set out in the majority opinion, and especially the
circumstantial evidence described on pages 3 and 4 thereof, and concurring as we
do in the rules laid down for deducting illegal votes, we have little to say in
support of our dissent so far as the appreciation of such circumstantial
evidence is concerned.

In the present case the majority hold that the election of the municipal
president.of Jalajala is illegal, because thirty two voters who were challenged
and disqualified by the court from voting, were nevertheless permitted to cast
their votes for the office of municipal president in the election held in the
municipality of Jalajala, Rizal, on June 2, 1931, it being noted that the
court’s order disqualifying said voters was received by the election inspectors
two days before the election.

According to the judgment appealed from, Borja obtained 107 votes in said
election, and Roxas 124. The court, finding that the thirty-two disqualified
voters had voted for Roxas, deducted them from him, leaving only ninety two
votes for him. Hence this appeal.

That votes illegally cast in an election must be deducted is a question
already decided in this jurisdiction. We are all agreed that in order to make
such deduction evidence, either direct or circumstantial, must be presented to
show which of the candidates received those votes. The difficulty arises when an
attempt is made to ascertain in favor of which of the two contending candidates
such votes were cast. The majority of the court maintain that the circumstantial
evidence of record is insufficient to show in favor of which candidate those
votes were cast.

The judge who took cognizance of the protest found, in view of the
circumstantial evidence, that such votes were cast for the appellant, Roxas.
With all due respect to the majority, we believe it is unreasonable to assume
that the 32 votes challenged before the court by the appellee or his partisans,
and disqualified by said court from voting, voted for said appellee. If, at the
instance of the appellee, the court decided the petitions for exclusion against
said voters, disqualifying them from casting their ballot in Jalajala during the
past election, what reason is there for assuming that in voting, as they
actually did, they would vote for the very person who challenged them, that is,
the appellee? If the election inspectors of the minority to which the appellee
belongs, objected to the admission of said voters at the polls, and
notwithstanding that objection they were permitted to vote by the election
inspectors of the majority, to which the appellant belongs, what motive can
there be for assuming, that should such electors cast their votes, as they did,
they would do so for the appellee Borja ?

Furthermore, the record shows that the thirty-two voters are followers or
partisans of the appellant, and notoriously opposed to the owners of the
Jalajala estate, whence they were expelled when registration proceedings were
instituted, so that they even joined the so-called Communist group, one member
of which set fire to the house on the Jalajala estate. How is it possible to
believe or to imagine that such voters cast their votes for the appellee,

Gregorio J. Borja, who is one of the joint owners of that estate?

It is possible for a voter, for one reason or another, to abstain from voting
in an election for a certain candidate belonging to his party; but, ordinarily,
and in general, the electoral masses vote for the candidates of their party, or
of the political affiliation or group to which they themselves belong. We think
this is elementary in elections, and in judging of the conduct of men under
certain circumstances, we believe the best resolution is that based upon the
general rule and not the exception.

A careful consideration of all the circumstances we have mentioned, assuming
that the thirty-two voters all voted at the election in question, at which only
two candidates received votes for the office of municipal president, leads us to
the inevitable conclusion that said electors voted illegally in favor of the
appellant Manuel H. Roxas, and we are convinced that the court a quo did right
in deducting the 32 disputed votes from him.

It should be kept in mind that the intervention of the thirty-two voters in
the election here in question, was made possible by the disobedience of the
election inspectors of th appellant’s party to the order of the court directing
the exclusion of said electors from the voters’ list, and it is obvious that the
innocent voters should not be made to suffer for a punishable act committed by
the inspectors, by depriving them of the exercise of popular sovereignty
appertaining to them, called suffrage.

We believe it would be interesting to review our jurisprudence and see in.
what cases the court was obliged to annul an election in a precinct or
municipality. In Manalo vs. Sevilla (24 Phil., 609 [decided in 1913] )f the
election was annulled in the precinct of Jalajala, Rizal, in view of the
following irregularities:

“(1) The registry lists were improperly prepared and signed;

“(2) not enough voting booths were prepared and furnished; there should be a
booth for every 50 voters arid one for a fractional part thereof;

“(3) the ballot boxes were not presented to the public for inspection prior
to the opening of the polls as required by law;

“(4) no person, aside from the election officials, was permitted inside the
polling place except the person engaged in casting his ballot;

“(5) voters were not permitted freely to approach and enter the polling place
or witness the balloting as required by law;

“(6) voters and the public generally were prohibited from approaching the
polling place or entering the same;

“(7) voters desiring to vote were not permitted to approach or enter the
polling place except in alphabetical order, and then only singly and as called
by the policemen guarding the entrance;

“(8) the entrance to the polling place was guarded by officers of the law
under instructions from the election officials to permit no one to enter except
those designated by such officials;

“(9) the election was carried on as follows: The chairman of the board of
inspectors called the name of a voter; the name was taken up by the policemen
guarding the door and repeated to the body of electors which was kept waiting
thirty meters from the polling place; the voter whose name was called, if
present, thereupon stepped forward and was permitted to enter the polling place
and vote; after he retired another name was called and the process
repeated.”

In Gardiner vs. Romulo (26 Phil., 521 [decided in 1914]), the
election wag declared null -and void in five precincts of the municipality of
Camiling, Tarlac, on account of numerous frauds and irregularities, to wit:

“(1) Irregularities in the selection of polling stations and the construction
of the voting booths;

“(2) the disappearance of blank ballots after delivery thereof to the
municipal treasurer, and the subsequent markings of the remainder by the various
election boards;

“(3) frauds practiced by the inspectors in the preparation of the ballots of
illiterate voters;

“(4) other irregularities and frauds in connection with the preparation and
counting of the ballots;

“(5) intimidation and threats employed by Romulo and his partisans on the day
of the election.”

In Lino Luna vs. Rodriguez (39 Phil., 208 [decided in 1918]), the
court said:

“It has been announced in many decisions that the rules and regulations, for
the conduct of elections, are mandatory before the election, but when it is
sought to enforce them after the elections, they are held to be directory only,
if that is possible, especially where, if they are held to be mandatory,
innocent voters will be deprived of their votes without any fault on their part.
The various and numerous provisions of the Election Law were adopted to assist
the voters in their participation in the affairs of the government and not
to defeat that object. When the voters have honestly cast their ballots,
the same should not be nullified simply because the officers appointed under the
law to direct the election and guard the purity of the ballot have not done
their duty. The law provides a remedy, by criminal action, against them. They
should be prosecuted criminally, and the will of the honest voter, as expressed
through his ballot, should be protected and upheld.”

In Garchitorena vs. Crescini and Imperial (39 Phil., 258 [decided
also in 1918]), the court said:

“Courts, of course, should be slow in nullifying and setting aside the
election in particular municipalities or precincts. They should not nullify the
vote until it is shown that the irregularities and frauds are so numerous as to
show an unmistakable intention or design to defraud, and which do, in fact,
defeat the true expression of the opinion and wishes of the voters of said
municipality or precinct. * * * The rule is so well established that authorities
need no longer be cited in its support that whenever the irregularities and
frauds are sufficient to defeat the will of the people of the particular
municipality or precincts the entire vote should be rejected and those who are
guilty of such frauds and irregularities should be punished to the very limit of
the law.”

In Valenzuela vs. Carlos and Lopez de Jesus (42 Phil., 428 [decided
in 1921]), it was held that:

“It must now be regarded as settled doctrine of this court that voters shall
not be deprived of their votes by the mere failure of the election officers to
comply with the formal prerequisites of voting, as for instance, with the
requirements that an oath shall be administered to illiterate persons desiring
assistance in the preparation of their ballots and that they shall be assisted
by two inspector”. In order to justify the rejection of such a vote it must
appear that the irregularity, or irregularities, complained of were part of a
fraudulent scheme to frustrate the free expression of the desires of the
electorate.”

In Cailles vs. Gomez and Barbaza (42 Phil., 496 [decided also in
1921]), the election in the second precinct of Bay, Laguna, was annulled because
of the following irregularities, to wit:

“(1) The secrecy of the vote was violated; the booths were hot installed in
conformity with law, the inspectors entered the booths to electioneer and see
what the voters were writing;

“(2) the will of many voters was defrauded, as they were not allowed to cast
their votes freely, but were given ballots already prepared by the inspectors or
leaders;

“(3) where coercion was practiced upon many other voters by the election
inspectors by snatching, away from them their ballots and tearing them into
pieces after reading them;

“(4) the illiterate voters were not required to take the prescribed oath of
their incapacity;

“(5) the registry lists and the minutes of the election were not properly
kept; and, lastly,

“(6) after the boxes were locked, the municipal secretary opened them and
tampered with the ballots and mixed them.”

In Mandac vs. Samonte (49 Phil., 284 [decided in 1926]), the
election was annulled in two precincts of Currimao, Ilocos Norte. The court
said:

“We have carefully examined the 173 ballots found in the ballot boxes in the
two precincts of Currimao and are persuaded that these ballots were altered
after the election in such a way that, due to the erasures and rewriting found
in many of the ballots of the protestant as well as in those of the protestee,
it is really difficult, as the trial court held, to ascertain the true result of
the election in that municipality with respect to the office of provincial
governor.”

And recently in Demeterio vs. Lopez (50 Phil., 45, [decided in 1927]), it was
held:

“Elections should never be held void unless they are clearly illegal; it is
the duty of the court to sustain an election authorized by law if it has been so
conducted as to give a free and fair expression of the popular will, and the
actual result thereof is clearly ascertained. It has been held that gross
irregularities not amounting to fraud do not vitiate an election. (20 C. J.,
181, sec. 222.)”

And once more, citing 20 Corpus Juris, pages 179-181 it was held:

“* * * But the power to throw out an entire division is one which ought to be
exercised with the greatest care and only under circumstances which demonstrate
beyond all, reasonable doubt either that the disregard of the law has been so
fundamental or so persistent and continuous that it is impossible to distinguish
what votes are lawful and what are unlawful, or to arrive at any certain result
whatever, or that the great body of the voters have been prevented by violence,
intimidation, and threats from exercising their franchise.”

Comparing the cases cited with the contest under consideration, we see at a
glance that there are no such irregularities, frauds, or violations-of the law
here which produced the nullity of the election in a precinct or municipality;
and, it will be seen further, that there is no difficulty in deducting the 32
illegal votes in question and determining, with reasonable certainty, the result
of the election, according to the evidence of record.

And without the necessity of repeating the same principles laid down by this
Supreme Court in the cases cited recommending that extreme caution be used in
the exercise of the power to annul an election authorized by law, we believe
that the judgment appealed from should be affirmed, with costs against the
appellant.