GR L 13744; (November, 1918)

EN BANC

G.R. No. L-13744; November 29, 1918

JOSE LINO LUNA, petitioner-appellant,

vs.
EULOGIO RODRIGUEZ, respondent-appellant;
SERVANDO DE LOS ANGELES, respondent.

Ramon Diokno and Agapito Ygnacio for petitioner.
Sumulong & Estrada for respondent.

JOHNSON, J.:

It appears from the record that an election for the office of governor of the Province of Rizal was held on the 6th day of June, 1916. At said election Jose Lino Luna, Eulogio Rodriguez and Servando de los Angeles were candidates for said office. The election was closed, the votes cast in the various municipalities were counted, and a return was made by the inspectors of said municipalities to the provincial board of canvassers, who, after a canvass of said returns, proclaimed the following result:

(a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157; (c) Servando de los Angeles 3,576 votes; and (d) that Eulogio Rodriguez, having received a plurality of said votes, was duly elected governor of said province.

Against said proclamation Jose Lino Luna presented a protest in the Court of First Instance. Upon said protest issue was joined, hearing was had and a decision was rendered which was, on appeal, set aside and a new trial ordered. (Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. Rep., 186.) Complying with said order, a new trial was had at which the Honorable William E. McMahon, judge, presided. Additional evidence was adduced. After a consideration of all of the facts and the evidence adduced at both trials, Judge McMahon reached the conclusion that the ballots cast for the various candidates were as indicated in the returns of the inspectors of the various municipalities except those in the municipality of Taytay and Binangonan. In the municipality of Taytay, Judge McMahon found from the evidence that 50 ballots cast for Eulogio Rodriguez should not have been counted for him, and ordered that number of votes deducted from his total. In the municipality of Binangonan, Judge McMahon found that the inspectors did not close the polls at 6 o’clock p.m., and that a large number of persons voted after that time, and directed that the total vote of Eulogio Rodriguez should be reduced by the number of such votes, without ascertaining how many had been cast for Rodriguez and how many for Luna. By deducting the said votes in the municipality of Taytay and those cast after six o’clock p.m. in the municipality of Binangonan, Judge McMahon concluded that Jose Lino Luna had received a plurality of the legal votes cast at said election and ordered the provincial board of canvassers to correct its canvass accordingly. From that conclusion both parties to the contest appealed to this court and made several assignments of error.

Considering all of said assignments of error, we find that they present, in fact, but three questions:

(1) What is the effect of holding the polls open after the hour fixed for closing the election?

(2) What is the effect of assistance rendered by the inspectors of the election to incapacitated persons, without first requiring of such persons an oath to the effect that they are incapacitated to prepare their own ballots?

(3) What is the effect of a failure on the part of the authorities to provide proper voting booths?

With reference to the first question, the law provides that “at all the elections held under the provisions of this Act the polls shall be open from seven o’clock in the morning until six o’clock in the afternoon, during which period not more than one member of the board of inspectors shall be absent at one time, and then for not to exceed twenty minutes at one time.” (Sec. 21 of Act No. 1582; sec. 11 of Act No. 2045; sec. 543 of Act No. 2657, and sec. 445 of Act No. 2711.) Are the provisions with reference to the time of opening and closing the polls mandatory? It is admitted in the present case that the polls were not closed at 6 p.m. The record shows that at 6 p.m. a large number of voters had not yet been able to vote and that, for that reason, an agreement was made between some of the candidates for office who were present and the board of inspectors, to the effect that the polls should be kept open in order that such electors might vote. No objection whatever to that agreement was made by any person at that time.

One of the reasons why all of the voters of the municipality had not voted before 6 p.m. was that the board of inspectors failed to have the list of voters properly prepared at 7 a.m., and therefore but few of the voters were able to vote before eleven or eleven-thirty in the morning. That failure, on the part of the board of inspectors, made it impossible for many of the voters of the municipality of Binangonan to vote before the regular time for the closing of the polls.

Shall the ballot of an innocent voter, who is prevented, through no fault of his, from casting the same before 6 p.m. be annulled for the simple reason that the polls were kept open, after the hour designated by the law, for the purpose of giving such voter an opportunity to vote?

Experience and observation has taught legislatures and courts that, at the time of a hotly contested election, the partisan spirit of ingenious and unscrupulous politicians will lead them beyond the limits of honesty and decency and by the use of bribery, fraud and intimidation, despoil the purity of the ballot and defeat the will of the people at the polls. Such experience has led the legislatures to adopt very stringent rules for the purpose of protecting the voter in the manner of preparing and casting his ballot to guard the purity of elections. (Paulino vs. Cailles, 37 Phil. Rep., 825.)

The infinite ingenuity of violent partisan spirit in evading the rules and regulation of elections and the use of bribery, fraud and intimidation has made necessary the establishment of elaborate and rigid rules and regulations for the conduct of elections. The very elaborateness of these rules has resulted in their frequent violation and the reports of the courts are replete with cases in which the result of an election has been attacked on the ground that some provision of the law has not been complied with. Presumably, all the provisions of the election laws have a purpose and should therefore be observed. (Detroit vs. Rush, 82 Mich., 532; 10 L. R. A., 171; 9 R. C. L., 1091; Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72.)

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 election 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. (Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72; Jones vs. State, 153 Ind., 440.)

In the case of Gardiner vs. Romulo (26 Phil. Rep., 521), we held that when the Election Law does not provide that a departure from a prescribed form will be fatal and such departure has been due to an honest mistake or misrepresentation of the Election Law, and such departure has not been used as a means for fraudulent practices and it is clear that there has been a free and honest expression of the popular will, the law will be held to be directory and such departure will be considered a harmless irregularity. However, the irregularities may be so numerous as not to be attributed to ignorance or honest mistake, but to a design to defeat the will of the voters or to such careless disregard of the law as to amount not only to laches but to fraudulent intent. In such cases, the election officers should be punished, the election should be declared null and a new election held.

It has been held, therefore, very generally, that the provisions of a statute as to the manner of conducting the details of an election are not mandatory, but directory merely, and irregularities, in conducting an election and counting the votes, not proceeding from any wrongful intent and which deprives no legal voter of his vote, will not vitiate an election or justify the rejection of the entire votes of a precinct. (Behrensmeyer vs. Kreitz, 135 Ill., 591; Hankey vs. Bowman, 82 Minn., 328; Sprague vs. Norway, 31 Cal., 173; Webre vs. Wilton, 29 La. Ann., 610.)

The purpose of an election is to give the voters a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some question of public interest; and for that purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When that is done and no frauds have been committed, the ballots should be counted and the election should not be declared null. Innocent voters should not be deprived of their participation in the affairs of their government for mere irregularities on the part of the election officers, for which they are in no way responsible. A different rule would make the manner and method of performing a public duty of greater importance than the duty itself. (Loomis vs. Jackson, 6 W. Va., 613.)

The errors and irregularities which warrant the rejection of ballots and the annulment of an election and thus deprive lawful voters of their legal right to vote, should be such as to fully justify that result. (The People vs. Cook, 8 N. Y., 67; 59 Am. Dec., 451.) It has been held that even great irregularities on the part of election officers will not of necessity vitiate an election, where no fraud is committed or attempted, or no illegal vote was polled was no legal voter was deprived of his vote. (Morris vs. Vanlaningham, 11 Kan., 269.)

No complaint is made that any fraud was committed nor that any person voted who had no right to vote, by reason of the fact that the polls were kept open after the hour fixed by the law. It is admitted that the polls were kept open after the hour, by the consent of all parties concerned, for the reasons and purposes above indicated. In view of such facts, should the vote of the innocent voter be annulled and he thereby deprived of his participation in the affairs of the government when he was guilty of no illegal act? If the inspectors may, for one reason or another, prevent the opening of the polls or delay the commencement of the voting until 11 o’clock in the morning and then close the polls in the evening so as to prevent all those who desire to vote from voting, without incurring criminal liability for a violation of the election laws, the same motives will induce them to delay the opening of the polls until later and thus prevent any to vote except those whom they desire.

The polls should be opened and closed in strict accord with the provisions of the law. Voters who do not appear and offer to vote within the hours designated by the law should not be permitted to vote after the time for closing the polls has arrived. Upon the other hand, if the voter is prevented, during the voting hours, from voting, and is not permitted to vote by reason of the failure of the inspectors to do their duty, then, certainly, in the absence of some fraud, neither such votes nor the entire vote of the precinct should be annulled simply because some votes were cast after the regular hour. (People vs. Prewett, 124 Cal., 7; Packwood vs. Brownell, 121 Cal., 478; Pickett vs. Russell, 42 Fla., 116.)

The decisions in the various States of the United States are not uniform upon the effect of a failure to open and close polls at the time specified by the law. In some States such a provision has been held to be mandatory, in others directory. The decisions seem to be based upon the language of the particular statutes discussed.

We are not inclined to the belief that the legislature intended that a failure to comply with the law in this jurisdiction should render the entire election void, nor nullify the votes cast after the period mentioned in the law, unless the polls were kept open after the hour for the purpose of permitting some fraud to be committed, or for the purpose of permitting some person to vote who had not appeared during the regular voting hours.

The section of the law which we are discussing provides that ‘not more than one member of the board of inspectors shall be absent at one time and then for not to exceed twenty minutes at one time.” Suppose that the evidence showed that two of the inspectors were absent at one time and for a period longer than twenty minutes, would the courts be justified in holding that the entire election was void, in the absence of fraud, for the reason? There is little justification for holding that one provision of said section is mandatory and the other directory.

Our conclusion upon the first question, in view of the foregoing, is that in the present case there seems to be no justification, under the facts, there being no fraud committed, for annulling the votes of innocent voters who were permitted by the election inspectors to cast their votes in a legal manner after the regular hour for closing the polls. In this conclusion, however, we do not desire to be understood to have decided that in no case should the courts not annul and set aside an election, where fraud is clearly proved, for a violation of the section under discussion. When the polls are kept open after the hour prescribed by the law for the purpose of defeating the will of the people, such a violation of the law should result in annulling and setting aside the election of that precinct. No such facts exist in the present case. It is true, perhaps, that a number of the votes cast after the hour for closing the polls were sufficient to change the result of the election, but the result would have been the same had those same voters been permitted to vote, except for the negligence of the inspectors, during the regular hours for voting. There seems to be no more reason for annulling the votes cast, after the hour for closing the election, than for annulling the election for the reason that the inspectors failed to provide the means for voting at the time fixed for opening the polls in the morning.

We are firmly of the opinion that instead of depriving the innocent voters of their right to participate in the affairs of their government for irregularities committed by the election inspectors, the latter should be proceeded against in a criminal action for failure, on their part, to comply with the law and be punished in accordance with section 29 of Act No. 1592; section 2632 of Act No. 2657 and section 2639 of Act No. 2711.

The various and numerous provisions of the Election Law are 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 elections, have not done their duty. The law provides a remedy, by criminal action, against them. They should be prosecuted, and the will of the honest voter, as expressed through his ballot, should be protected and upheld.lawphi1.net

It may be noted in this relation that, under the law, the polls are kept open from 7 a.m. until 6 p.m. or, for a period of eleven hours only. In the municipality of Binangonan the record shows that there were 375 analfabetos (illiterate persons) and 164 other voters. The law requires an analfabeto to take an oath and that the oath shall be filed. Naturally the inspectors require some time in (a) ascertaining whether or not the voter is in fact an analfabeto; (b) in administering, preparing, signing and filing the oath. Suppose one minute only is allowed for that work. Then two inspectors must accompany such a voter to the booth, there assist him in preparing his ballot and then return to their position occupied by them as inspectors. We do not think that work could be accomplished in less than another minute and it would more than likely occupy nearer two minutes. But admitting that it could be accomplished in one minute, we have, at least, two minutes occupied by two inspectors for each analfabeto. There being 375 analfabetos, it would require 750 minutes to vote, or 12 ? hours. If the inspectors had strictly complied with the law, not all of the analfabetos of said municipality could have voted in the eleven hours provided by the law, not to say anything of the time necessarily occupied with the 164 other voters of the municipality who would, at least, occupy one minute each of the time of the inspectors, or nearly 2 1/2 hours more. With reference to this particular question of the time necessary for each analfabeto to vote, some of the judges have estimated that it would take, at least, five minutes of the time of the inspectors for each analfabeto. (Hontiveros vs. Mobo, R. G. No. 13959, p. 230, post.)

From the foregoing, it was practically an impossibility for all of the voters of said municipality to have voted in the eleven hours prescribed by the law even though the polls had been opened promptly at 7 a.m. instead of at nearly 11 a.m. The above time is computed upon the theory that no time whatever is lost, that the voters arrive one immediately after another and that no time is lost waiting for the arrival of the voters.

With reference to the second question above presented, the law provides that:

A voter otherwise qualified who declares that he can not write, or that from blindness or other physical disability he is unable to prepare his ballot, may make an oath to the effect that he is so disabled and the nature of his disability and that he desires the inspectors to assist him in the preparation of such ballot. The board shall keep a record of all such oaths taken and file the same with the municipal secretary with the other records of the board after the election. Two of the inspectors, each of whom shall belong to a different political party, shall ascertain the wishes of the voter, and one of them shall prepare the ballot of the voter in proper form according to his wishes, in the presence of the other inspector, and out of view of any other person. The information this obtained shall be regarded as a privileged communication. (Section 12, Act No. 2045; section 550, Act No. 2657; section 453, Act No. 2711.)

Said quoted section provides the method by which a person who cannot prepare his ballot may be assisted. The conditions are:

(a) That he must make an oath to the effect that he is disabled and the nature of his disability together with the fact that he desires the inspectors to assist him in the preparation of his ballot;

(b) That a record of said oath shall be filed with the municipal secretary with the other records of the board of inspectors after the election; and

(c) When said oath is taken, then two of the inspectors, each of whom shall belong to different political party, may assist him in the preparation of his ballot.

In view of said conditions, what shall be the effect of a failure to comply therewith? Suppose, for example, that the voter is incapacitated; that the board of inspectors are fully aware of that fact; that they failed to require of him the oath; that they failed to keep on file the oath taken, or that one inspector only assisted said voter in the preparation of his ballot, or that two assisted him which belonged to the same party, shall the ballot of such an incapacitated person be rejected? Shall all of the votes of the precinct be nullified because of the failure of the inspectors to comply strictly with the letter of the law?

We held in the case of Paulino vs. Cailles (R. G. No. 12753, 37 Phil. Rep., 825) that the ballots of incapacitated persons who voted without taking the oath or were assisted by one inspector alone, or by two belonging to the same party, should not be counted if such ballots could be identified. We further held that, in the absence of fraud, all of the ballots of the precinct should not be invalidated by the mere fact that the inspectors did not comply with their duty. Innocent voters should not be deprived of their participation in an election for a violation of the law for which they were in no way responsible and which they could not prevent.lawphil.net

The incapacitated persons mentioned in said section above noted are usually persons who are unable to acquaint themselves with the provisions of the law. They are, therefore, absolutely dependent upon the advice and counsel of others. Generally, they have no idea whatever as to the form and requirements in casting their ballots. Their ignorance, however, does not relieve them from their responsibility under the law, nor from the effect of their failure to comply therewith. (Manalo vs. Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R. G. No. 12382 decided March 15, 1917, not published; Paulino vs. Cailles, R. G. No. 12763, 37 Phil. Rep., 825.)

The law intended that those votes only who are incapacitated in some way should be assisted. To insure a compliance with the law an oath of incapacity is required. To prove that only such persons have received assistance, the election board is required to keep a record of such oath. To guarantee that such voters should not be imposed upon, the law wisely provided that two inspectors of different political faith should assist them. Upon the other hand, if the inspectors have failed or declined to perform a duty or obligation imposed upon them by the Election Law, they may be punished.

The record shows that in many of the municipalities of the Province of Rizal, during the election in question, a great many incapacitated persons voted without taking the oath required and were assisted by one inspector only in the preparation of their ballots. But, in view of the fact that such ballots have not been identified they cannot be rejected. The voter cannot be punished. The remedy is by a criminal action against the inspectors for a failure to comply with the law. (Section 29, Act No. 1582; section 2632, Act No. 2657; section 2639, Act No. 2711.)

Said section (2632) provides, among other things, that any member of a board of registration, or board of inspectors, or board of canvassers who willfully declines or fails to perform any duty or obligation imposed by the Election Law, shall be punished by imprisonment for not less than one month nor more than one year, or by a fine of not less than P200 nor more than P500 or both.

With reference to the third question above indicated, relating to what is the effect of a failure on the part of the authorities to provide proper voting booths, it may be said that we have held in the case of Gardiner vs. Romulo (26 Phil. Rep., 521) that the requirements of the Election Law providing for the location of polling stations and the construction of booths and guard rails for the latter may be departed from in some particulars and yet preserve, in substantial form, the secrecy which the law requires. But the failure to provide doors and guard rails for the booths and the placing of the writing shelf so that it faces the side instead of the rear of the booths are, combined, a fatal disregard of the law, inasmuch as such an arrangement does not offer, even in substantial form, the secrecy and seclusion which, according to the purpose and spirit of the Election Law, is its most mandatory requirement.

Section 9 of Act No. 1582, as amended by section 512 of Act No. 2657 and section 415 of Act 2711, provides that there shall be in each polling place, during each election, a sufficient number of voting booths, not less than one for every fifty voters, in the election precinct. Said section further provides how such voting booths, not less than one every fifty voters, in the election precinct. Said section further provides how such voting booths shall be constructed. The purpose of said provisions is to furnish each voter an opportunity to prepare his ballot in secrecy. Suppose the board of inspectors does not prepare the voting booth in exactly the form prescribed by law, what shall be the effect? Support, the example, that they construct a booth less than one meter square as is provided by the law but yet sufficiently large to enable the voter to enter and to prepare his ballot in secrecy; or suppose that the door swinging outward to the booth shall extend to the floor instead of within fifty centimeters of the floor; or suppose that the shelf upon which the voter shall prepare his ballot shall be less than thirty centimeters wide, shall the entire election be declared null and void for such failures when it is admitted and proved, beyond question, that even with such defects in the fulfillment of the requirements of the election law they were in fact constructed in a manner which provided the voter a complete opportunity to prepare his ballot in absolute secrecy? While there is no provision in the law, relating to the construction of booths, they shall be constructed in such manner as to afford the voter an opportunity to prepare his ballot in secret, that must be the primary and ultimate object of having the booths constructed in the manner indicated.

When we held that the law requiring the preparation of the booths in a particular manner was mandatory, we did not mean to hold that unless they were prepared in exact conformity with the law, that the election would be nullified. We simply held that if they were not constructed in a manner which afforded the voters an opportunity to prepare their ballots in secret, the election would be declared null and void on that account. If, however, upon the other hand, the booths were so constructed, even though not in strict accord with the provisions of the law, as to afford each voter an opportunity to prepare his ballot in secret, the election should not be declared null and void. Secrecy is the object of the booth. An opportunity to prepare his ballot in private is the purpose of the provision. When the booth affords that protection, the purpose of the law is fulfilled. To hold otherwise ? to establish a different rule ? would make the manner of performing a public duty more important than the performance of the duty itself.

In the present case, while there is some conflict in the evidence, and while the proof clearly shows that the booths were not constructed in strict accordance with the provisions of the law, we are of the opinion that a large preponderance of the evidence shows that the booths were constructed (defectively perhaps) in a manner which afforded each voter an opportunity to prepare his ballot in absolute secrecy. That being true, we find no reason for changing or modifying the conclusion of the lower court.

The defendant-appellant alleges, and attempts to establish the fact, that in the municipality of San Felipe Nery many irregularities were committed which should invalidate the election. For example, he alleges the different columns of the polling list were not properly filled. Even granting that fact, the voter was in no way responsible. The voter not being responsible, his ballot should not be nullified on that account. Filling the different columns of the polling list is a duty imposed upon the election officers. If they fail to perform their duty they are responsible; and as we have frequently said, the ballots of innocent voters should not be nullified for a failure on the part of election officers to perform their duty in accordance with the provisions of the law. The remedy is a criminal action against the inspectors if they have violated the law and not to nullify the votes of innocent voters.

The defendant-appellant further alleges that in the municipality of San Felipe Nery, a number of voters voted who were not residents of said municipality. That question was presented to the court below, and upon a full consideration he refused to nullify the election in said municipality upon the grounds alleged. While it is true that the proof shows that some grave irregularities were committed by the board of inspectors, we are not persuaded that the evidence is sufficient to justify this court in nullifying the entire vote of said municipality. In view of that conclusion, we deem it unnecessary to discuss the other allegations of the defendant-appellant with reference to the striking out of certain allegations in his answer.

The lower court, after hearing the evidence and after examining the ballots cast in the municipality of Taytay, found that 50 ballots which had been counted for the defendant-appellant should not be counted for him and ordered that the total vote of the defendant-appellant should be reduced by that number. The defendant-appellant in fact admits that the said 50 votes should be deducted from his total vote. In view of that admission of the defendant-appellant, we deem it unnecessary to discuss the reasons therefor.

Upon the various errors assigned, our conclusions are:

(1) That the total votes cast in the municipality of Binangonan should be counted for the respective candidates; that for the special reason given, the board of inspectors was justified in keeping the polls open after the hour for closing. But this conclusion must not be interpreted to mean that under other circumstances and other conditions, where the polls are kept open after the hour for fraudulent purposes, that such act on the part of the inspectors might not nullify the entire election (Gardiner vs. Romulo, 26 Phil. Rep., 521);

(2) That while it is irregular for the board of inspectors to permit incapacitated voters to vote without taking the oath and for one inspector only to assist such voters, yet the ballots of the innocent voters should not be nullified on that account; that the ballots of such persons only should be annulled when identified;

(3) That inasmuch as the voting booths in the municipality of Antipolo were prepared in a manner and form which permitted the voter to prepare his ballot in absolute secrecy, the vote of that municipality should not be nullified; and

(4) That the judgment of the lower court reducing the total vote of the defendant-appellant by fifty identified fraudulent ballots counted for him, in the municipality of Taytay, should be affirmed.

As a result of the count of the ballots, cast in the various municipalities by the provincial board of inspectors, Eulogio Rodriguez received 4,321 votes, Jose Lino Luna received 4,157 votes and Servando de los Angeles received 3,576 votes. Servando de los Angeles did not protest the election. From all of the foregoing, the total votes of Eulogio Rodriguez must be reduced by 50 votes, leaving him a total of 4,271 only, or a clear majority of 114 votes.

Therefore, with the modification herein indicated, the judgment of the lower court is affirmed as modified, and it is hereby ordered and decreed that the record be immediately returned to the lower court with direction that a judgment be entered directing and ordering the provincial board of inspectors to amend its count accordingly.

It is so ordered, without any finding as to costs.

Arellano, C.J., Torres, Street, Malcolm and Avanceña, JJ., concur.

Batas Pinas