VICENTE BAUTISTA ET AL., PETITIONERS, VS. VALERIANO FUGOSO AND THE HONORABLE PEDRO MA. SISON, RESPONDENTS.

On July 14, 1934, Valeriano Fugoso filed in the
Court of First Instance of Manila a petition for writ of mandamus (civil
No. 46700) naming the Junta Municipal de Escrutinio de Manila as
respondent. The petition recites in substance that the petitioner was a
duly qualified candidate for the office of councilor in the general
election held in Manila on June 5, 1934; that the Junta Municipal de
Escrutinio de Manila (Election Canvassing Board) is composed of
Vicente Bautista as president and the following members: Gabino Pobre,
Lazaro Pormarejo, Martin de Castro, Simplicio de los Santos, Jose Saez
Tiu, Bernabe Cruz, Ifiigo Ed. Regalado, Alfredo Z. Fernandez and
Felicisimo Gabriel, having as its secretary, Edilberto Gonzalez; that
the said board in refusing to credit Valeriano Fugoso with 85 votes to
which he was entitled for precinct No. 135 of the City of Manila
fraudulently and illegally reduced his total vote to 16,297 and in
crediting Teofilo Mendoza with 100 votes in precinct No. 229, the said
board illegally and fraudulently increased his total vote to 16,428,
resulting in a majority of 121 votes in favor of Mendoza, and declared
and proclaimed him elected on July 12, 1934; that it was the ministerial
duty of the said election board to count the said 85 votes in favor of
Valeriano Fugoso in precinct No. 135 and to conform to the decision of
the court authorizing the correction of the error of 100 votes in
precinct No. 229 which were erroneously credited to Teofilo Mendoza;
that although the petitioner has demanded of said board that these
corrections be made and the petitioner declared to be the elected
candidate the said board has refused to take any further action. The
petition prays that the board be required to file its answer and that
upon final hearing a writ of mandamus issue requiring said board to
reassemble and recount the votes of the candidates for the office of
councilor cast in said election held in Manila on June 5, 1934, to the
end that the said errors in precincts Nos. 135 and 229 should be
corrected and the petitioner Valeriano Fugoso be declared elected.

On July 16, 1934, the court ordered the president
and secretary of the said canvassing board to appear and show cause why
the writ should not be granted as prayed for. On July 16, 1934,
Edilberto Gonzalez filed his answer which consists of a general denial
and a special defense to the effect that the said board having declared
the result of the election as aforesaid has ceased to exist since July
13, 1934, and therefore he, the said Gonzalez, appears only in his own
behalf having ceased since that date to be the secretary of the said
board. The answer continues with a statement of the proceedings had in
the said board terminating in the proclamation issued on the morning of
July 12, 1934, declaring Mendoza and not Fugoso as the duly elected
councilor. The answer further alleges that a protest and not a mandamus
is the proper remedy available to the petitioner and prays that the
petition be dismissed. On July 18, 1934, the trial court rendered a
decision reciting that upon the hearing of the petition the respondent
appeared neither personally nor by counsel. The secretary of the board,
Edilberto Gonzalez, appeared by counsel. The court received the evidence
of the petitioner and found the facts to be in substance as alleged in
his petition. Considering the objections raised by Edilberto Gonzalez,
the triad court held that the proclamation of the board of July 12,
1934, was void. It further held that the board under the circumstances
of this case could be compelled to reassemble and perform any
ministerial duty and that the remedy by way of protest is not available
to the candidate until after a valid proclamation has issued. The court
thereupon ordered the respondent, Municipal Board of Canvassers of
Manila, to reassemble and recanvass all the votes cast in favor of the
candidates Valeriano Fugoso and Teofilo Mendoza in accordance with the
corrections in precincts Nos. 135 and 229 previously authorized by
judicial proceedings, that is to say, adding 85 votes to the count of
Valeriano Fugoso in precinct No. 135 and deducting 100 votes from
candidate Mendoza in precinct No. 229.

Copies of said decision were served on all the
members of the board individually. No copy was served on the secretary,
Edilberto Gonzalez. On July 23, 1934, at 6 o’clock a. m., Valeriano
Fugoso filed a petition in the court stating that the said board had
failed to comply with the decision and order of the court of July 18,
1934, and prayed for an order requiring each and every one of the
members of the said board to appear and show cause why he should not be
punished for contempt and in case of further disobedience praying that
they be confined in Bilibid until they complied with the order of the
court. On the same day, the court issued an order denying said” petition
but requiring the respondent board within forty-eight hours from
service upon them of copies of said order to comply with said decision
warning them that upon failure to do so, they would be liable for
contempt. Upon receiving copies of this last order, the several members
of the board, by their counsel, entered a special appearance in which
they asserted that they had never been served with copies of the
petition for mandamus; that no summons had been served upon them; that
they had never entered any voluntary appearance subjecting themselves to
the jurisdiction of the court; that the service of summons upon
Edilberto Gonzalez was not a legal service upon the board of canvassers
nor did his appearance by filing an answer bind any person but himself.
They therefore denied that the court ever acquired any jurisdiction over
them.

On July 24, 1934, the respondent board of
canvassers, through its president, filed an appearance copy of which was
served on the attorney for the petitioner. This document is as follows:

“COMPARECENCIA

“La Junta recurrida hace constar su comparecencia
especial, por medio del que suscribe, con el unico objeto de exponer
respetuosamente los siguientes:

“Que ha recibido copia de la orden de este Juzgado
de fecha 23 del presente mes que fija un ‘plazo de 48 horas
improrrogables para cumplir con la decision’ y en caso contrario, los
miembros de la Junta ‘quedaran incursos en desacato’;

“Que el articulo 224 del Codigo de Procedimiento
Civil dispone que ‘se servira copia certificada de la decision y orden
de mandamiento perentorio’ a la parte demandada; y hasta la fecha la
recurrida no ha recibido copia certificada de la decision ni la orden de
mandamiento perentorio ;

“Que la recurrida no podra cumplir con la decision
de este Juzgado a menos que se cumplan las disposiciones del articulo
224 del Codigo de Procedimiento Civil.

“Por lo tanto, se pide respetuosamente la
reconsideracion de la orden de este Juzgado de fecha 23 del presente mes
suspendiendo sus efectos y se ordena el cumplimiento de lo dispuesto en
el articulo 224 del Codigo de Procedimiento Civil.

 

“Manila, I. F., hoy 24 de julio de 1934.
		“JUNTA MUNICIPAL DE ESCRUTINIO
			“Recurrida
	(Fdo.)	“VICENTE BAUTISTA “

On July 27, 1934, the court entered an order the
dispositiv part of which is as follows:

“Por tanto, el Juzgado DECLARA que la
comparecencia especial arriba mencionada no esta justificada, y que ha
adquirido debidamente jurisdiccion sobre esta causa por haber sido
debidamente emplazada la recurrida junta municipal de escrutinio, y
ordena a la junta recurrida y a todos sus miembros para que hasta a la
una de esta tarde improrrogablemente cumpla con la decisidn de este
Juzgado; y SE instruye al Sheriff de Manila para que, si despues de
aquella hora los miembros de la citada junta recurrida no hayan cumplido
con esta orden y la decision de este Juzgado en esta causa proceda
inmediatamente a arrestarles y recluirles en Bilibid hasta que cumplan
con las mismas,” whereupon the members of the board as individuals filed
a petition for certiorari in this court praying for relief on the
ground that the trial court had never acquired jurisdiction over them
either by their voluntary appearance or by service of summons, and
therefore the order threatening them with arrest and confinement in
Bilibid was void. Upon the prima facie showing made by the
sworn petition the court issued a temporary injunction and required the
respondents to answer. The cause is now before us for decision on the
petition and answer after due hearing at which counsel for both sides
appeared and made oral arguments.

It may be conceded for the purposes of this case
that in order to acquire jurisdiction over the petitioners the action of
mandamus (civil No. 46700) should have been directed against them
individually -and personally and they should have been served with
summons under paragraph 6 of section 396 of the Code of Civil Procedure.
It may be conceded that said suit was not a suit against a corporation
formed under the laws of the Philippine Islands referred to in paragraph
1 of section 396 nor was it a suit against the City of Manila so as to
make paragraph 5 of section 396 applicable. (Cf. Cordero vs.
Judge of First Instance of Rizal, 40 Phil., 246.) But even if it be
conceded that the petitioners were not brought within the jurisdiction
of the trial court by compulsory process before its said order of July
27, 1934, was entered, we have concluded that the trial court was
correct in holding that the petitioners had entered a voluntary
appearance when they filed the petition set out above, marked Exhibit 8.
Prior to the filing of the said Exhibit 8 by Vicente Bautista on behalf
of the municipal canvassing board, all of the members had individually
been served with a copy of the decision of the court of July 18, 1934.
They deny in the said Exhibit 8 having received a copy of the order of
the court of July 23, 1934, and they pray that said order be
reconsidered and that they be served with a copy thereof in accordance
with the provisions of section 224 of the Code of Civil Procedure. In
the said petition, Exhibit 8, the jurisdiction of the court over them is
not questioned. At no stage of the proceedings thereafter was the
authority of Vicente Bautista, the president of the board, to make said
appearance on behalf of the board ever put in issue. No reference was
made with regard thereto either in the petition for the writ of
certiorari or the special appearance filed on July 25, 1934, or upon the
argument in this court. On the record before us we have concluded that
the court acquired jurisdiction over the petitioners by the voluntary
appearance aforesaid.

The petitioners allege that the orders of the trial
court of July 18, 1934, and July 23, 1934, supra, are void
because the municipal board of canvassers having terminated their duties
by the issuance of a proclamation on July 12, 1934, had ceased to exist
thereafter. It may be conceded as a general proposition that when a
board of canvassers has fully performed its duty and proclaimed the
result of the election according to law and adjourned sine die,
it may be deemed functus oficio in the sense that the members
of the board have no power voluntarily to reassemble and recanvass the
returns. The case of Cordero vs. Judge of First Instance of
Rizal (40 Phil., 246), is directly in point. In that case the municipal
board of canvassers issued their proclamation on June 6, 1919. On June
23, 1919, they voluntarily held another meeting and undertook to amend
their first proclamation and this court held: “* * * The municipal board
of canvassers was without authority to make the recanvass and the new
proclamation without having been authorized so to do by an order of the
court in accordance with the provisions of section 479 of Act No. 2711.”
In the present case, however, it appears that the Acting Secretary of
the Interior authorized the said board to convene in a special session
on July 26, 1934, for the purpose of complying with the order of the
Court of First Instance in the mandamus suit filed by Valeriano Fugoso
against the said board. Although there is considerable conflict of
opinion in various jurisdictions as to whether a board of canvassers may
reassemble after adjourning sine die and make a recanvass of
the votes under any circumstances, we accept as the more reasonable the
doctrine that until the board has fully performed the duties laid upon
it by law in the manner prescribed by the law, it may be required by a
writ of mandamus to comply with the law and complete its work in
accordance with the law. Its duties are purely ministerial and mandamus
is the proper remedy. This court said in the case of Municipal Council
of Las Pifias vs. Judge of First Instance of Rizal (40 Phil,
279, 283):

“Until the board of canvassers had performed the
exact duty imposed upon it by law it must be considered as in default,
and, in a case like that it would be a legal anomaly to allow the
examining board to rely upon the fact that it had issued one certificate
of election to a party, who had not received the largest number of
votes, contrary to the express provision of the law, as a sufficient
reason why it should not be compelled to perform an imperative duty.
(Paine on Elections, pp. 756, 757.)” (See also Blaquera vs.
Municipal Council of Lagangilang and Hermoso, G. R. No. 16092,
promulgated December 17, 1920, not reported, and Municipal Council of
Antipolo vs. Court of First Instance of Rizal, G. R. No. 42329,
resolution of August 22, 1934.)

In view of the premises, the petition for writ of
certjorari is denied and the temporary injunction issued in this case is
dissolved, with costs against the petitioners. The effect of this
decision is to leave the order of the court below of July 27, 1934, in
full force and effect, but inasmuch as the period for compliance limited
in said order has passed, it is proper for the trial court to fix a new
reasonable period of time for the members of the board of election
canvassers of Manila to reassemble and recanvass the votes and issue a
correct proclamation in compliance with the decisions and orders of,the
trial court heretofore made.

Malcolm, Villa-Real, Imperial, and Goddard,
JJ., concur.