ANTONIO S. SAN AGUSTIN, PETITIONER, VS. CONRADO BARRIOS, JUDGE OF FIRST INSTANCE OF ILOILO, ET AL., RESPONDENTS.

This
is an original petition for certiorari instituted by Antonio S. San
Agustin against the Honorable Conrado Barrios, Judge of First Instance
of Iloilo, and others, wherein, on the facts alleged therein, it is
prayed that, after proper proceedings, a decision be rendered reversing
that entered by the respondent judge and declaring him councilor elect
of the City of Iloilo with a majority of 3 votes over the respondent
Crispino Melocoton, with the costs to the latter.

On
December 31, 1937, the herein petitioner, Antonio S. San Agustin, who
was one of the candidates for councilor of the City of Iloilo in the
general elections held on December 14, 1937, filed his protest with the
Court of First Instance of Iloilo against the election of Eulogio
Garganera, Serapion C. Torre, Evelino Zaldivar, Fortunato R. Ybiernas,
Serafin de la Cruz, Leopoldo Ganzon and Crispino Melocoton, wherein,
among other things, he asked that he be declared one of the candidates
elected to the office of councilor of the City of Iloilo. After the
corresponding trial, the respondent judge, Honorable Conrado Barrios,
on March 29, 1938, rendered his decision the dispositive part of which
reads:

“In view thereof, the court declares
Messrs. Eulogio Garganera, Serapion C. Torre, Fortunato R. Ybiernas,
Evelino Zaldivar, Serafin de la Cruz, Leopoldo Ganzon and Crispino
Melocoton legally elected councilors of the City of Iloilo, Province of
Iloilo, Philippines, having obtained a greater number of votes than the
petitioner, Dr. Antonio San Agustin, the respondent Melocoton, who
obtained the least number of votes among the six already mentioned,
having obtained a plurality of 15 votes over the petitioner, Dr. San
Agustin, with the right to remain as councilors of the City of Iloilo.
The protest of the petitioner, Dr. Antonio San Agustin, is accordingly
dismissed, with the costs.”

In considering
the contents of the ballot boxes of precinct No. 32 of Iloilo, which
were opened during the trial, the lower court said:

“Upon
opening the white box for valid ballots there were found 783 used
ballots, and according to the minutes Exhibit R, 802 electors voted in
this precinct, hence, a difference of 19 ballots. The red box in this
same precinct was revised and inside thereof were found open, aside
from the 30 ballots with stubs which are spoiled ballots, 20 stubless
ballots (Exhibits 37 to 56), plus 18 more ballots (Exhibits X, Y, Z, AA
to OO) claimed by the petitioner, or a total of 38 ballots, giving an
excess of 19 ballots.

“According to the evidence, the
ballots introduced by the inspectors in these precincts, 27 and 32,
with the exception of the 30 ballots with stubs, were deposited in the
red boxes thereof by the inspectors during the canvass, because they
found, in the opinion of the majority of the board of inspectors, that
the same were marked or countersigned and, hence, spoiled.”

And resolving the question of whether or not the ballots found in the red box should be counted, it said:

“Considering
these facts and the legal provisions applicable to the case, the court
is of the opinion that none of the ballots found in the red boxes for
spoiled ballots in precincts 27 and 32, whose number exceeds that of
the voters in each of these two precincts, should be counted as valid;
because it cannot be determined which thereof should be excluded as
excess ballots and which should be counted in favor of the different
candidates.

“In view of the foregoing considerations, the
court is of the opinion that the 35 stubless ballots found in the red
box of precinct 27, as well as the 38 stubless ballots found in the red
box of precinct 32, should not be counted for any candidate.”

From the above it is seen that the trial court refused to count the 38
stubless ballots found in the red box of precinct No. 32, because in
its opinion it could not be determined which thereof should be excluded
as excess ballots and which should be counted in favor of the various
candidates. It is a fact that the said 38 ballots—20 without stubs
(Exhibits 37 to 56) and 18 (Exhibits X, Y, Z, AA to OO), with the note
“marked” on the back or with blemishes—were deposited in the red box,
because in the opinion of the majority of the board of inspectors, the
soiled ballots were spoiled because marked or countersigned. The
presumption is that ballots found in a red box have been spoiled,
particularly if they bear the word “inutilizada” or “spoiled”; however,
this is not a presumption juris et de jure impervious to attack, but one juris tantum which yields to contrary proof. (Ditching vs. Jalandoni, 52 Phil., 796, citing approvingly Lucero vs. De Guzman, 45 Phil., 852; Bulan vs. Gaffud, 49 Phil., 906; Mandac vs. Samonte, 49 Phil., 284; Valenzuela vs. Carlos and Lopez de Jesus, 42 Phil., 428; Domalaon vs. Estrellado, G. R. No. 36284 [56 Phil., 840]; Oliveros vs. Santos, G. R. No. 36273 [56 Phil., 849]; Ignacio vs. Navarro, G. R. No. 37401 [57 Phil., 1000, 1011], and Balatan vs. Beltran, G. R. No. 30670, promulgated on July 22, 1929.)

The fact that the 38 stubless ballots were found in the red box is,
therefore, no bar to their being reckoned with. Neither does such fact
preclude the determination of which of said ballots were excess ballots
and which were rejected because marked or countersigned. The excess
ballots had to be dropped out from the white box of useful ballots
before going forward with the canvass, under section 462 of the
Election Law; wherefore, they would not bear on the back the note
“spoiled” or “marked ballot”; whereas those turned down by the majority
of the board of inspectors during the canvass would disclose the note
“marked ballot” or “balota marcada”. It was, consequently, easy to
ascertain those which had been eliminated from the white box as excess
ballots before the canvass and those which had been rejected thereat
because marked or countersigned. The placing of the excess ballots and
those rejected as allegedly marked or countersigned in the red box,
instead of in the white box where they originated, as ordered
respectively by sections 462 and 463 of the Election Law, was a mistake
of the inspectors and should not prejudice the candidate. Having the
said 38 ballots before him, among which were found those missing in the
white box of precinct No. 32, which the petitioner, as protestant,
claimed to be valid and to have been cast in his favor, it was the duty
of the honorable respondent judge to consider and examine said 38
ballots and to determine which thereof were excess and which were
spoiled because marked or countersigned, and whether or not their
rejection was erroneous. In refusing to do this, the trial court failed
to comply with an imperative judicial duty.

As the Election
Law does not authorize an appeal from a decision in an election protest
questioning the validity of the election of municipal councilors, and
as there is no other adequate and speedy remedy to compel the
respondent judge to comply with the said duty, except by mandamus, the
latter remedy lies. Altho the petition before us is one for certiorari,
it appearing from the facts alleged in the petition that the error
sought to be corrected consists in the non-compliance with an
imperative judicial duty, we shall consider the same as if it were one
for mandamus and act upon it accordingly. (Guzman vs. Lichauco, 42 Phil., 291; People vs. Concepcion, 55 Phil., 485.)

In view of the foregoing, we are of the opinion and so hold: (1) that
when in a red box are found excess ballots taken before the canvass
from the white box, together with ballots which were rejected by the
board of inspectors during the canvass because marked or countersigned,
the judge who hears the protest should, at the instance of a party,
consider them and determine which thereof are excess and which are
rejected because marked or countersigned, and whether or not their
rejection was erroneous; and (2) that altho the petition filed is one
for certiorari, it the facts alleged make out a petition for mandamus,
the latter remedy will be granted.

Wherefore, the decision
of the honorable respondent judge is reversed and set aside, and he is
ordered to reopen the election protest and to consider the 38 stubless
ballots found in the red box of precinct No. 32 of the City of Iloilo,
Province of Iloilo, to separate the excess ballots from those which
were rejected by the majority of the board of canvassers as marked or
countersigned, and to determine if their rejection was erroneous or
not, thereafter rendering another decision, without special
pronouncement as to costs. So ordered.

Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.