GR 20942; (April, 1924)

EN BANC

G.R. No. 20942; April 5, 1924

JUAN T. LUCERO, contestant-appellant,

vs.
TOMAS F. DE GUZMAN, contestee-appellee.

Sison and Enaje, Gregorio Talavera, Fausto Almeida, Rodolfo Baltazar, and the appellant himself for same.
Alejo Mabanag, Alejandro de Guzman, Guzman, Formoso, and Gorospe, Augusto Reyes, Jose Rivera, and Mariano Villanueva for appellee.

STREET, J.:

At the last general election held on June 6, 1922, there were four candidates for the office of governor in the Province of La Union, to wit, Juan T. Lucero, Tomas F. de Guzman, Fulgencio Quezada and Fabian S. Abellera. When the votes were counted De Guzman and Lucero were found to be the two leading contestants, and upon canvass of the returns by official board De Guzman had a plurality of 39 votes, and was accordingly declared elected and inducted into office. On June 22, 1922, or eight days after the proclamation announcing the election of De Guzman, Lucero instituted a contest and due notice was served upon each of the three who had contested the election with him. Quezada and Abellera, however, have refrained from engaging in the contest, and the contention is limited to the rival claims of Lucero, as contestant, and De Guzman, as governor-elect and contestee.

After trying the contest upon the voluminous record piled up in the course of nearly two years during which the case was pending in the Court of First Instance, his Honor, Judge C. M. Villareal, filed a decision on May 22, 1923, declaring that De Guzman, the contestee, had been elected by a plurality of 156 votes over the contestant and ordered notice of the decision to be given to the board of provincial canvassers, as required by law. From this decision the contestant, Lucero, appealed.

Before entering into the merits of the case it is necessary to dispose of a motion to dismiss interposed by the contestee in this court. In this connection it appears that when the contest was instituted, the contestant presented as one of the two bondsmen required to be given by section 482 of the Administrative Code, one Carmen Almeida de Young, a married woman; and the bond was approved by the court with her name upon it. On November 25, 1923, however, the contestee raised a question as to the validity of the bond, asserting that the husband of Carmen Almeida de Young had not given his contest to the creation of the obligation. On this ground accordingly the contestee moved the court to dismiss the contest for lack of jurisdiction on the part of the court to entertain it. Within two days of the filing of this motion the contestant submitted to the court another bond containing the name of another bondsman in lieu of the name of Almeida de Young, and this second bond was approved by the court. Later, in an order, dated December 11, 1923, the court overruled the motion to dismiss for lack of jurisdiction and authorized the substitution of the second bond in lieu of the one first given, with the result that the contest continued its course. To this order the contestee excepted, and the point has been again presented in this court upon a motion of the contestee to dismiss for lack of jurisdiction.

We are of the opinion that the alleged defect in the first bond ? assuming that the husband of Almeida de Young had not assented to the creation of the obligation ? could not in any event affect the jurisdiction of the court over the contest and that the trial court committed no error in allowing a new bond to be given in lieu of the first.

It is true that section 482 of the Administrative Code prescribes that before the court shall entertain an election contest or admit an appeal, the contestant or appellant shall give bond, in an amount to be fixed by the court, with two securities satisfactory to it, conditioned that he will pay all expenses and costs incident to such motion or appeal. Under this provision, which is undoubtedly mandatory, the court cannot lawfully proceed with a contest or admit an appeal in a contest case until the necessary bond has given. But it does not follow that the failure to give the bond destroys the jurisdiction of the court. (Nicholls vs. Barrick, 27 Colo., 432.) The jurisdiction of the court over the contest attaches when a motion containing proper jurisdictional averments is filed within the time prescribed by law; and the jurisdiction of the court cannot thereafter be determined by what the court itself may or may not do. It has been accordingly held to be no error for the court before which a contest is pending to permit a contestant to file a new bond for costs, where the first is considered insufficient. (David vs. Jones, 123 Ala., 647.)

In two cases this court had declared that the requirement of our statute with respect to the giving of a bond for costs in election case is not jurisdictional. (Hontiveros vs. Mobo, 39 Phil., 230; Ancheta and Aguilar vs. Judge of First Instance of La Union and Verceles, 40 Phil., 73.) The first of these decisions was concerned with an appeal, and it was held that while the appeal in an election contest must be perfected within ten days, the bond required by the law need not be given until the court fixes the amount thereof. The failure to give the bond within ten days will not, so the court held, invalidate the appeal. In the second case it was held that the bond to be given upon the initiation of the contest may be given within a reasonable time after the amount is fixed by the court; and the court, speaking through Mr. Justice Johnson, said: “While the court has jurisdiction of the action by the presentation of the motion, the law prohibits it from continuing the action until the protestant gives a bond, the amount of which must be fixed by the court.”

Our attention has been called to decisions from American courts in which a conclusion apparently differing from that above announced has been reached, but upon a careful examination of such cases it will be found that the statutes there applied peremptorily require the bond for costs to be given either at the very commencement of the contest or within a fixed period thereafter. These precedents can have no weight in a jurisdiction where, as here, the statute permits the bond to be given within a reasonable time after the contest is begun. But of course failure to give bond, or the giving of an insufficient bond, would at any time be ground for a motion to dismiss for non-compliance with the statute, if the defect should not be cured.

In beginning our discussion of the case as presented upon appeal, we may premise the observation that the record is very voluminous, and every phase of the case received most elaborate treatment in a lengthy opinion in the court below. We shall therefore in the main refrain in this opinion from the elucidation of questions upon which we are in substantial agreement with the trial judge and shall confine our discussion chiefly to points upon which we have found it necessary to state a different conclusion from that reached by him.

The controversy involving the largest single group of votes arises with reference to the action of the trial judge in cutting down Lucero’s vote in the first precinct of Santo Tomas from 173 to 100. This issue was raised in the counter-protest of the contestee, wherein it was alleged that the returns from this precinct had been fraudulently made to show 173 votes for the contestant instead of 100, which he was alleged actually to have received. The trial judge arrived at the conclusion that this charge was established and he accordingly reduced the votes credited to the contestant in the precinct mentioned to the number of 100.

Upon a careful review of the evidence and findings of the trial judge, we are of the opinion that 173 lawful votes were cast for Lucero in the First precinct of Santo Tomas, as shown in the inspector’s certificate, or the returns, including the copy which was used by the board of provincial canvassers, showed 173 votes for Lucero. The fourth copy is said to have shown only 100 votes for Lucero; and two witnesses who were around the polling place on the day of the election testified that they saw the figures 100 written upon the blackboard as the total vote for Lucero, after the count was concluded. Other testimony tending to discredit the correctness of the returns with respect to the vote of Lucero was also adduced, to which reference will more particularly ba made hereafter. At present we proceed to demonstrate that the alleged fraud could not possibly have been committed, and that the contestant is entitled to the entire 173 votes credited to him by the canvassing board, without diminution of any.

It appears from the poll list that 251 persons voted in the first precinct of Santo Tomas at the election held on June 6, 1922, and there is no proof tending to cast doubt upon the correctness of this list. On the morning of the election 500 official ballots were delivered by the municipal treasurer to the election inspectors in the precinct. These ballots were contained in five tablets of 100 each, lettered serially A, B, C, D, and E. Of these ballots 251 were used on the election day by the 251 voters presenting themselves to vote. These 251 used ballots were taken from tablets A and B (which were entirely used up) and from tablet C, leaving 49 unused ballots upon the last. When the ballot boxes of this precinct were opened by the commissioners all of these ballots were found intact, there being 250 used ballots in the box for used ballots and one ballot in the box for spoiled ballots. All of these ballots are identified as official ballots from the tablets already mentioned by the identifying number found on the back of each. The due conservation of the ballot boxes prior to the time they were opened was sufficiently proved, and the boxes, when opened, showed that the contents were intact. It is absolutely certain, therefore, that there could not have been any such thing as the substitution or addition of any fraudulent ballots in the place of any that had been used on election day. We may add that nothing was found in the boxes except the things which should have been placed therein by the inspectors after the election was over.

It is shown by the concurrent testimony of four persons who kept tally during the count of the votes that 243 votes were cast for the two different candidates for the Senate, and 240 for the different candidates for representative. The tally sheet taken from the box and the official returns corroborate this. The place for the name of the candidate for whom the vote was to be cast for governor stood third on the ballot. According to the official returns HH, corroborated by the tally sheet, 233 votes were cast in the race for governor, of which 173 are credited to Lucero. The two witnesses, Santiago Reyes and Dominga Rivera, testifying for the contestant and who, as watchers, kept tally during the count, both testify that, according to their count, 232 votes were cast in the election for governor, of which Lucero received 173. It will be seen that the figures given by these witnesses as presenting the total vote fall short of the vote noted in the official returns by only one vote, but this was due to their failure to credit one vote to Quezada, a candidate for governor who is not concerned with the contest.

When we bear in mind that in any election voters are accustomed to vote most heavily for the office on the top of the ballot and in moderately reduced numbers for the succeeding offices, until the local officers are reached, it will be seen that the figures above given represent a very reasonable percentage of votes cast for the three provincial officers standing at the top of the ballot, that is to say, 243 for senator, 240 for representative and 233 for governor. Such was the number of votes cast for each of these candidates out of a total voting list of 251, and the percentage cannot be said to be abnormal.

But the two witnesses testifying for the contestee who claim to have kept tally during the counting of the votes would have us believe that Lucero received only 100. This assumes an extraordinary and abnormal drop in the number of votes cast for governor, which according to these witnesses, was only 159. In the case of Valenzuela vs. Carlos and Lopez de Jesus (42 Phil., 428), this court held that the official returns from the first precinct of the municipality of San Rafael were false, and one of the circumstances which convinced us of the falsity of the returns was the unreasonably high number of persons voting for the office of governor in proportion to the total number voting and the number of votes cast for senator and representative. Similar considerations in the case before us serve to corroborate the official returns and to discredit the pretense that the returns were falsified.

In addition to the testimony of the witnesses who say they attended the count and that Lucero got only 100 votes, the contestee submitted proof to the following effect: Deogracias Case, municipal treasurer of the municipality of Santo Tomas, testified that in the afternoon of June 7, 1922, he saw Mariano Daz, president of the board of inspectors of the first precinct, and he asked him for a statement of the votes for the various candidates in his precinct. In response to this request Mariano Daz delivered to the witness a copy of the returns. From this the witness drew off a statement which he exhibited in evidence, and from which it appears that Lucero received only 100 votes. The next day the witness says he learned that his figures for Lucero did not correspond with the official returns in the hands of the municipal secretary, and he accordingly changed the number recorded in his memorandum from 100 to 173, using red ink, to make his figures conform with those shown in the returns then in the possession of the municipal secretary. That night, the witness says, Mariano Daz presented himself in the municipal building and asked if he could open the box of used ballots as he wished to insert some papers therein. The witness, as custodian of the boxes, replied that Daz ought not to open the box but suggested that the papers to which Daz referred might be introduced through the slot in the box. The witness further states that the papers which Daz wished to insert in the box were composed of a folio sheet, or sheets, twice doubled.

Deogracias Cases appears to have communicated the information which he had received from Mariano Daz concerning the number of votes received by different candidates to the provincial treasurer, using the telephone as the means of communication. Among the items of information so communicated was the statement that Lucero had received 100 votes in the first precinct. Angel Salanga says that as deputy provincial treasurer, he received the message from Cases and noted the statement as to Lucero’s vote. Magno Sino Cruz, a policeman and witness for the contestee, says that he was at the polling place during the count and that Lucero obtained 100 votes according to the showing made upon the blackboard. He also says that in the evening of June 7 he was at the municipal building and that at about nine o’clock he saw Mariano Daz, in the company of Carlos Villanueva and Sixto Reyes, putting ballots into the box through the slot in the lid. In this statement he is corroborated by Pio Alisangco.

When the boxes were opened thirty-five of the ballots contained in the box for used ballots were submitted by the contestee as proof tending to show that fraudulent practices had been used in the voting in this precinct; and Reynaldo Aspillera, who supposes himself to have some skill in the art of judging handwriting, was introduced as a witness and testified that these thirty-five ballots are written by a single hand. He also expressed the opinion that the penman of these ballots was none other than Roman Bernal, one of the watchers at the election and a partisan of Carlos Villanueva, candidate for municipal president. The contestant, in response to this proof, introduced Tomas Puzon, as a judge of handwriting, who declared that he had examined the thirty-five ballots referred to above and said that they were not written by a single person but by nine; and he divided the ballots into nine groups to indicate the particular ballots written by each.

The trial judge seems to have been impressed by the suggestion that the thirty-five ballots mentioned were written by one hand, and he records the suspicion that Roman Bernal had secretly written out said ballots and, upon election day, had unlawfully placed them in the hands of voters through cracks in the partition between the voting booths. We have carefully examined all of said ballots, and must record the conviction that the suspicion entertained by his Honor is without justification. Upon the slightest inspection any experienced person must see at once that the questioned ballots are not written by the same hand but by a number of different persons. It is not improbable that most of those in the largest group, consisting of nine or ten ballots, were written by Roman Bernal, and the obvious explanation is this: Under the law, as it now stands, a person desiring assistance, and making oath to that effect, is accompanied into the voting booths by two persons, one being a person of confidence chosen by the voter; the other being one of the watchers participating in the conduct of the election. Both of these persons have to be sworn, as well as the intending voter, and the affidavits made by all of them are duly preserved. (Sec. 453, Admin. Code, as amended by sec. 32 of Act No. 3030.) In the first precinct of Santo Tomas about twenty-five or thirty voters required assistance. One such person appointed Roman Bernal to assist him in the preparation of the ballot, and the two were accompanied into the booth by one watcher. In addition to this, we note from the affidavits found in the box that Roman Bernal, as a duly sworn watcher, accompanied seven other illiterate voters into the booths with persons of confidence chosen by said voters. It thus appears that Roman Bernal must have lawfully entered the voting booths on the day of the election at least nine times, once upon the occasion of preparing his own ballot and eight other times upon the lawful mission of assisting illiterate voters. Being somewhat skilled in the use of the pen it is not improbable that Roman Bernal was asked to write out the ballots upon more than one occasion when he went into the booth as watcher. If this conjecture is correct, it accounts for all of the ballots which may properly be attributed to his hand among the thirty-five collected from the ballots in the precinct. The supposition therefore that this individual may have fraudulently written a number of ballots and caused them to be surreptitiously introduced into the box in any manner is altogether gratuitous and improbable. In this connection the point should not pass unnoticed that of the thirty-five ballots attributed to the pen of Roman Bernal about the same proportion have the name of De Guzman for governor as was received by him on the general average in this precinct, and so with the vote of Quezada. This shows the said ballots could not have been fabricated exclusively in the interest of Lucero.

Before passing to another phase of this matter, we should observe that, supposing thirty-five or any other number of ballots to have been inserted in the ballot box by Mariano Daz after the box had arrived at the municipal building on the night of June 7, complete disorder would inevitably have been introduced into the number of votes cast for every other candidate; for it will be noted that the official returns for other offices had already been made out, and all of the ballots supposedly introduced, in the fraudulent manner suggested, contained names of persons voted for all of the offices. Supposing the fraud to have been perpetrated, we should now find in the box many more votes for different persons than are allowed in the returns. But no such circumstance is revealed.

Much proof relative to irregularities in the municipality has relation to alleged defects in the construction of the booths and particularly to the insufficiency of the partitions. In this connection it appears that the partitions were made by the plaiting of the leaves of coconut trees; and it is claimed by the contestee that these leaves had dried before the election day and had contracted to such an extent that many interstices were created at various places in the fragile texture. It is insisted that this and other defects of construction were so great as to violate the secrecy of the voting and thereby render the election void in three, if not four, of the precincts. Upon reviewing the evidence touching this point, the trial judge declared that, while the construction was in some respect defective and the material comprising the compartments was not well put together, the defects, taken altogether, were not such as to affect the validity of the election in any of the precincts. But his Honor intimated that, as regards the first precinct of Santo Tomas, he entertained a suspicion that the thirty-five ballots attributed to the pen of Roman Bernal might have been fraudulently passed from one booth to another by Roman Bernal during the course of the voting. But we have already shown that he contents of the ballot boxes completely refute this suspicion, and the circumstances that the voting booths were poorly constructed contributes no support to the allegations of fraud with respect to the alteration of the returns.

In our opinion the simple explanation of the suspicious facts which have been the subject of so much contention in this case is that a mistake was made by somebody in writing the figures 100 on the blackboard at the polling place, as a summary of the votes received by Lucero, when he in fact received 173. This mistake may have originated in an error in one of the copies of the official returns, the same perhaps that Mariano Daz afterwards exhibited to Deogracias Cases. The fact that such mistake was made was of course calculated to arouse suspicion, but the charge of fraud is disproved. The testimony tending to show that Daz introduced ballots into the box on the night of June 7 is necessarily false, though we would be prepared to believe that he may then have inserted into the box some paper, possibly a tally sheet, which has been improperly kept out when the box was locked at the polling place. But whether anything was put in or not, it is clear that nothing was taken out. The action of the trial judge in cutting down the vote of the contestant in the first precinct of Santo Tomas to 100 was an error which must be corrected; and we shall here adhere to the official returns, which show 7 for De Guzman, and 173 for Lucero.

In response to allegations of fraud contained in the counter-protest, the trial judge subtracted four votes from the number received by the contestant in the second precinct of Naguilian. The grounds upon which this was done seem to us insufficient. It appears that there is a road leading over a mountain to the barrio of Gusing in this precinct; and this road had fallen into bad repair, to the extent that at one place, where the road passes along the edge of a precipice, it had become exceedingly dangerous. In fact shortly before the time of which we are now speaking a carabao cart had gone over the cliff with loss of two human lives. In passing over this road, upon occasion of visiting Gusing for electioneering purposes, the contestant had noticed the dangerous condition of the road and was the more concerned for the reason that his wife was expected to come over the same road and a few days thereafter. For this reason the contestant arranged with the road overseer (capataz), to get some laborers and do some necessary repairs at the point referred to. In order to pay the expenses of this work the contestant gave the overseer P4.50, telling him to compensate the laborers out of said money, or that if they were reluctant to take money, to give them some wine for refreshment. The overseer did as was instructed, and he says that he distributed a part of the P4.50 among the laborers employed in the work.

Information to the effect that the contestant had caused the Gusing road to be repaired appears to have gotten abroad among the voters, and some of them were well impressed by the public spirit and generosity thus exhibited. In the course of the trial four residents of the second precinct of Naguilian were called by the contestee and examined as witnesses in his behalf. They say with a common voice that they voted for the contestant because they heard that the Gusing road was to be repaired, or had been repaired, upon the contestant’s orders; and upon identification by them of the several ballots which they had cast, and it appearing that Lucero was the person voted for in said ballots for the office of governor, the trial judge-deducted said votes as having been obtained by corrupt inducements.

We are unable to see this incident in the prejudicial light in which it was viewed by the trial judge; and we are of the opinion that error was committed in casting out these votes. Even supposing that the contestant may have called attention to what he had thus done in a public meeting and had promised to exert himself for the improvement of the way in case of his election, it would not follow in our opinion that the votes in question were obtained by corrupt practices. The provincial governor under the law has much to do with the direction of provincial efforts towards the maintenance of highways; and a manifestation of interest by a candidate in public work of this nature is not to be reprehended. These four votes must therefore be restored to the contestant.

It is different with respect to the votes, twenty-nine in number, which the trial court subtracted from the vote of the contestant for improper practices in the third precinct of Rosario and in the first, third, fourth, fifth and sixth precincts of Naguilian. As to these votes the majority of the justices participating in this decision are of the opinion that the trial judge should be sustained; and said votes accordingly have not been admitted.

What has thus far been said suffices to dispose of the questions concerned with external fraud or irregularities in the election; and we proceed to consider the errors alleged to have been committed by the court in limiting the scope of the recount and in admitting or rejecting particular ballots. As preliminary to this discussion it is necessary to note the fact that the contest was begun on June 22, 1922, by a motion, filed by the contestant, in which he alleged, with sufficient detail, that in certain precincts the boards of electors designedly failed to credit the contestant with a specified number of votes. It was also alleged that in certain precincts the boards of inspectors had unlawfully and fraudulently credited the contestee with a specified number of votes to which he was not entitled. On July 12, 1922, the contestee presented his answer and motion of counter-protest in which he alleged that similar frauds and irregularities had been committed to his prejudice in various precincts. It was in this counter-protest that the allegations were made concerning the irregularities committed in Santo Tomas, which we have already considered, and the unlawful practices committed by the contestant, or others acting in his behalf, in Naguilian and Rosario. On September 1, 1922, the contestant presented his reply to the counter-protest, and shortly thereafter the same reply was amended. In this the contestant made an issue as to the correctness of the returns in certain precincts about which question had been made in the counter-protest. The result was that the vote in every precinct in the province was in one way or another called in question by either the contestant or contestee, without the exception of any precinct whatever.

In view of this general attack on the election returns from all precincts the court on July 10, 1922, with the approval, and apparently at the request of both litigants, appointed four commissioners to open the boxes and examine the ballots. Two of these commissioners were directed to examine the ballots from the northern municipalities of the province and the other two were directed to examine the ballots from the southern municipalities.

After having duly qualified for the discharge of their duties, the commissioners undertook their respective tasks and on due time submitted reports in which they set forth the information required of them concerning the contents of the boxes and the condition of the ballots found therein. Before the boxes were opened satisfactory proof had been presented, showing the due conservation of all the boxes, and we may add that, upon opening the boxes, the contents of all were found intact. We have already noted the circumstance that the integrity of the boxes from the first precincts of Santo Tomas was called in question by one of the parties, but said charge has been shown to be unfounded. It is, we think, clearly apparent that none of the boxes had been tampered with at any time prior to the opening of the same by the commissioners or thereafter disturbed except as an incident of this contest.

After the report had come in from the commissioners, the contestee noted the fact that the official returns in certain precincts of the municipalities of Bangar and Tubao were more favorable to him than the report of the commissioners, and the contestee therefore deemed it expedient formally to withdraw his protest with respect to these precincts, when the time came for him to submit proof in support of the alleged irregularities. The contestant naturally objected to the withdrawal of the counter-protest as regards these precincts where the report of the commissioners was more favorable to himself than the original returns; for it happened that the contestant himself had made no question in his own motion of contest concerning the correctness of the returns in these precincts. Notwithstanding the opposition of the contestants, the court permitted the contestee to withdraw his counter-protest; and the court then ruled that as the contestant had made no allegation of fraud or irregularities in these precincts, he could not be permitted to impugn the returns by an appeal to the ballots.

In making this ruling the trial judge proceeded upon the idea that the proof to be adduced by the parties must be limited strictly to the allegation contained in the motion, counter-motion, or reply, and that errors revealed when the boxes were opened could not be corrected unless issue had been made concerning the same.

The same idea manifested itself in the course of the contest in other way. For instance, if the contestant in formulating his charges had put forth the allegation that in a certain precinct the inspectors had failed to credit him with five unexceptionable votes, and the fact (as revealed upon the examination of the ballots) appeared to be that they had in fact failed to credit him with an even greater number, his Honor maintained the view that no advantage could be taken by the contestant of the excess of error over what had been alleged in the motion ? and so on in respect to other irregularities as to which the allegations fell below the revealed facts.

We are of the opinion that his Honor was entirely wrong in dealing with this class of questions; and the simple proposition which we desire here to lay down is this: That where the conservation of the boxes is prima facie shown and their contents are found intact upon being opened according to law, the ballots themselves are the best evidence, and it then becomes the duty of the court to determine the contest, so far as dependent upon the count, by the proof thus afforded. When the examination of the ballots is concluded it becomes unimportant whether the litigants may have guessed right or not in formulating their charges in motion or counter-motion. And it is not necessary for the litigants, as the count proceeds, to make amendments in motion or counter-motion to conform exactly with the facts revealed upon the inspection of the ballots.

In formulating the law with respect to procedure in election cases, the lawmaking body attempted to teach us ? though we often seem to forget this fact ? that contests are not to be conducted “upon pleadings or by action.” (Admin. Code, sec. 481.) The purpose of this is to free the courts as far as possible from the technicalities incident to ordinary proceedings and to enable justice to be administered speedily and without complication.

When the boxes are opened and the truth concerning an election made accessible, considerations of public policy require that the proof thus supplied should be accepted. The public at large has the deepest concern in the integrity of elections, and this public interest must be regarded as well as the technical rights of the litigants themselves. It would be most scandalous for us to sanction a practice under which a party to an election contest could be permitted to force an examination of the ballots and when the result is found unfavorable to himself to require the court to cover up the wrong, with consequences injurious to the cause of justice. When the boxes are opened at the instance of the parties to the contest, they are estopped from questioning the true result of the revision whatever that result may be. The plain duty of the court, under the circumstances presented in this case, was to proceed to a revision of the count, with the report of the commissioners before him, and assisted by the facts appearing in those documents. If this had been done the labors both of the trial court and of this court would have been greatly lessened, with a probable diminution of the time consumed in the contest.

Before submitting our resume of the vote in the different precincts we shall preface a few observations with reference to the general character of defects in ballots to which exception has been taken by one or the other of the litigating parties; and we regret to note the fact that the appellant’s attorneys have seen fit to prosecute exceptions to hundreds of ballots upon grounds which are obviously untenable under rules precisely stated in Cailles vs. Gomez and Barbara (42 Phil., 496), and Valenzuela vs. Carlos and Lopez de Jesus (42 Phil., 428), to say nothing of earlier decisions settling the same points. This procedure has had the necessary effect of greatly increasing the labor of this court. Among the defects thus unnecessarily made the subject of criticism in this court are such as these: That the name of the person voted for, though sufficient to identify the individual, was badly written or incorrectly spelled; that the name was preceded by an honorary prefix or accompanied by a familiar nickname; or that the voter, evidently unskilled in the use of a pen, had made superfluous marks or flourishes in his effort to write the ballot.

The accidental perforation of the paper by the hard point of pen or pencil, or the fact that the ballot has been accidentally torn, does not affect its validity. The same is true as to the placing of numbers before the names of persons voted for (where several are to be named for the same office), there manifestly being no other intention on the part of the voter than to keep count of the number of names written.

In a number of instances exception has been taken to ballots on the ground that they appeared to have been written by two hands. Generally in such cases it is evident that the writer of the ballot may have changed from and indelible to an ordinary pencil in the course of making out the ballot, or vice versa; or that the pencil was sharpened while the writing of the ballot was in progress. Such features are of course of no importance. In a very considerable number of ballots blurs were found, resulting from the fact that the person writing the ballot had begun a name incorrectly or perhaps had started to write the name of the wrong person for a particular office but, noting his error, had erased such name or a part of it, writing above it or over it the true name of the person intended to be voted for. We repeat in this case that such blemishes, evidently resulting from innocent error, do not affect the validity of the ballots.

In this connection we should point out that, where the votes so far errs as to write the name of the wrong person in a certain place on the ballot, he would be within his rights in surrendering said ballot and claiming another; and in case he does this, the ballot surrendered would be placed in the box of spoiled ballots. if, however, the voter, instead of surrendering such ballot, attempts to cure the error by erasure and proceeds to fill out the ballot in the form desired by him, it is to be treated as a lawful ballot, if the intention of the voter can be made out and he does not appear to have violated the law in some other respect. We note that the trial judge was in the main correct in his treatment of such blemishes.

In examining the ballots cast for the contestee it becomes apparent that confusion existed in the minds of many voters as regards the Christian name of the candidate. For instance, it appears that the contestee has a brother named Bernabe Guzman, and more than twenty ballots scattered through various precincts were found to have the name of Bernabe Guzman written in the place where provincial governor should be voted for. Numerous other ballots were found bearing such names as Juan Guzman, Gregorio Guzman, Anastacio Guzman, Alejandro Guzman, Genaro de Guzman, Pedro Guzman, Mariano Guzman and the like. None of these ballots can, in our opinion, be lawfully counted for the contestee, and the trial court was in error in admitting them as lawful votes for him.

It appears that when this point was first raised in the court below it was made to appear of record that there was no candidate of the name of Guzman who had presented a certificate of candidacy for the office of governor other than Tomas F. de Guzman, and the trial judge thought that this circumstance, admitted by both parties, was sufficient to justify the counting of these votes for the true candidate, the contestee in this case.

We cannot see that an agreed statement as to so obvious a fact alters the case in the least, and the ballots in question cannot be counted for the contestee. We have repeatedly held that the omission of the middle name, or middle initial of the person voted for, is unimportant; and it is not necessary that the first Christian name should be written out in full. We have also several times ruled that the use of the correct surname of a candidate where there is only one candidate bearing such name is sufficient, as where the name is written simply “Guzman,” without more. But the votes now under consideration are not of this type, as they all contain complete names composed of both a Christian name and a surname different from those borne by the contestee. In cases of this nature the trial judge had no discretion, and the votes must be thrown out. We may say, however, that the transposition of surname and Christian name does not affect the validity of the ballot, as where the contestee’s name is written “Guzman, Tomas.” We have furthermore in numerous instances sustained the court in admitting a vote for the contestee where the surname was in some respects not fully written out, as “Tomas de Gus,” but we rejected one vote where the surname was represented only by a sole initial (G.)

Both of the litigating parties have suffered a material diminution of votes in this contest from the fact that the name which various voters desired to place in the space (encasillado) where the governor should be voted for was placed in some other space than that indicated on the ballot as the proper place for such vote. Not infrequently there was evidently a general misplacement of the whole series of names intended to be voted successively for senator, representative, and provincial governor; and we find that, beginning at the top of these ballots, the voters have placed the name of the senator above the space intended for his name and so on through the other offices successively. The result is that the name of the person for whom the voter may have intended to vote as representative appears in the space for senator, and the name of the person intended to be voted for as governor appears in the space for representative. The trial court used proper discernment in rejecting votes for either of the litigating parties where there was apparently a single misplacement, i. e., in the office for governor; but he made a distinction in those cases where there was a general misplacement of the whole set. The reason given was that in this latter class of cases it could be inferred that the name appearing in the space for representative was really intended to be voted for governor. Upon careful consideration of this point we are of the opinion that the distinction upon which his Honor here proceeded cannot be maintained; and we hold that a name can be counted for any office only when the name is written within the space indicated upon the ballot for the vote for such office. In obedience to this rule we have rejected a number of votes for both contestant and contestee on the ground that their names were really voted for some other office than that of governor.

The point upon which we have been compelled most frequently to differ from the trial judge is whether a particular ballot should be rejected as a marked ballot. We have sustained the trial judge in rejecting as marked a number of ballots upon which impertinent expressions have been designedly written by the voter, as “curang ni Agustin,” “bizcochos,” “no more, no more, no more,” and like, as we have also rejected two ballots upon which were pinned or pasted printed slip containing the name of Alejo Mabanag, candidate for senator. We have also approved the rejection of a few ballots by the trial court which had names appended at the bottom, appearing to be the signatures of the voters; but in a still greater number of cases we have rejected the idea that the names alleged to be signatures were really such, and have come to the conclusion from examining the ballots that the alleged signatures were really the names of persons who were intended to be voted for as councilors. This conclusion has been made evident from the fact that in such cases the questioned names appear upon other ballots from the same precinct as the name of persons who were really candidate for said office. It often happens that the voter is unable to remember all of the names, or the full names, of the persons for whom he desires to vote as councilor. In such cases the incomplete name, or names, will be found at the bottom of the list; and discernment should be used to avoid the rejection of such ballots as signed when the only defect is that the name of one or more persons voted for is incomplete.

We note that voters are often possessed by an uncontrollable desire to draw marks across the vacant space at the bottom of the ballot. Some of these strokes will be found to have been drawn diagonally across the vacant space, a few ballots have flourishes in various forms, and in more than one case a series of zeros was placed across the ballot. None of these ballots can be lawfully rejected, in the complete absence of any indication of fraudulent intent, or design on the part of the voter to mark his ballot in a style which would enable him or another to separate it from other ballots. Acts of this character, evidently unconsciously done, do not affect the validity of the vote.

We note that in more than one instance the trial judge counted in favor of the contestee ballots which had been found in the box of spoiled ballots but which, according to the criterion adopted by his Honor, appeared to be clean and unexceptionable ballots. The assumption was that these ballots had been inserted in the box of spoiled ballots by mistake, and the court thought it permissible to take account of them in the revision of the votes. This action on the part of the trial court was in our opinion erroneous. The box for spoiled ballots is intended to be a receptacle not only for ballots which have been rendered useless by some accident in the hands of the voter, but also for other ballots which for any reason cannot be lawfully placed in the box for used ballots. For instance, an intending voter may be given a ballot, and after it has been filed out in good form, the right of the voter to cast the ballot may be successfully challenged. Such ballot would of course be taken up and be put in the box for spoiled ballots. Again, a voter may, through ignorance or inadvertence, detach the numbered coupon before the ballot is presented to the chairman. Such a ballot would necessarily go into the box of spoiled ballots, and the voter would be given another clean ballot to be properly voted. Other reasons perhaps might be imagined why ballots properly filed out might have to be discarded. From this it is seen that no ballot placed by the election officers in the box for spoiled ballots should ever be counted, whether unexceptionable in form or not, unless proof is supplied that such ballot was placed in the box of spoiled ballots by mere mistake; and the appearance of the ballot itself cannot be accepted as supplying the necessary proof upon this point.

A point which in our opinion was correctly ruled by the trial court, but which we consider worthy of notice because the same question may arise in other cases, has reference to the failure of the election inspectors to detach the numbered coupon from a ballot, otherwise unexceptionable, bearing the name of the contestee and found in the box for used ballots from the first precinct of Bacnotan (Exhibit 11-J-16). The trial judge held that this ballot was good. In this we think no error was committed. In section 442 of the Election Law, as amended by section 26 of Act No. 3030, it is declared that the numbered coupon found on every fresh ballot shall be detached by the chairman of the election board at the moment when the ballot is surrendered by the voter and is to be placed in the ballot box, but not before. It is further required that said coupon shall then be deposited in the box for spoiled ballots and that no ballot the number whereof has not been detached by said chairman, and in the sight of the board of inspectors, shall be allowed to be deposited in the box for used ballots. No words could be more explicit. The prohibition against the placing of a ballot in the box with the coupon still upon it is express. Nevertheless it will be noted that this provision of the law has reference to an act which is to be done by the chairman of the election board after the ticket has left the hands of the voter, and at a time when the voter has lost all control over it. It is a well-settled rule that a voter shall not be deprived of the franchise by the mere failure of the election officer to comply with some provision or another of the statute relating to acts to be done exclusively by the officer. If this ballot, unexceptionable in all respects except in the circumstance that the numbered coupon is still attached, should be held invalid, the result would be that voters might be easily disfranchised by a mere fraudulent trick on the part of the chairman, or even by an innocent oversight on his part. The provision in our opinion, while absolutely mandatory as regards the duty of the election officer to detach the coupon, does not contemplate that the voter shall be disfranchised by the failure of the official to comply with that provision. The ballot in question must, therefore, be pronounced good. Of course if there were external evidence showing satisfactorily that this ballot had been surrendered as a spoiled ballot and had accidentally been placed in the box of used ballots without the detachment of the number, when it should have been placed in the box of spoiled ballots, it would have to be rejected, being identified by the circumstance that it alone, among all other ballots in the box of used ballots, had the number ship still upon it.

The rules of this court require that assignments of error should be specific. Of course this does not mean that in an election case a separate assignment must be made with respect to every ballot, which would be intolerable. But it is the duty of the appellant’s attorney, in his discussion of the errors imputed to the trial court in the revision of ballots in the different precincts, to point out the error, or errors, into which said court is supposed to have fallen. In a number of instances in the case before us, the appellant’s attorneys have contended themselves with a mere submission of the particular ballot in question to the judgment of this court, without attempting to show wherein the trial court erred in admitting or rejecting such ballot. We have uniformly refused to examine such ballots for lack of sufficient assignment.

The appellee, having been successful in the court below, of course, is not required to make formal assignments of error in this court. Nevertheless it is incumbent upon the appellee to point out in his brief any errors against himself into which the court may be supposed to have fallen; and in the present case the appellee has availed himself of this privilege by pointing out numerous instances in which the trial court committed error against him. We have carefully examined all of the points favorable to the appellee thus presented, provided the ballots with reference to which error is supposed to have been committed have been identified with such precision as would enable us to resolve the point at issue.

The decision of this case has involved a careful review by this court of the action taken by the trial court upon many hundreds of ballots, and every assignment presented by the appellant, with the pertinent reply of the appellee thereto, has been considered. The result of our revision is contained in the table below, in which the votes corresponding to each of the litigants are indicated for all precincts. The table shows that the contestant received a plurality of twenty-four votes over the contestee. This conclusion is in harmony with the facts revealed in the reports of the commissioners, which showed a majority of thirty-three clean votes in favor of the contestant; and the result further accords with the natural probability of the case when we consider the fact that, according to the same reports, the contestant received not only a greater number of clean votes but also a plurality of votes reported by the commissioners as open to doubt as well as a plurality of the votes which were wholly lost by the misplacement of the candidate’s name upon the ballot.

We may add that in making this revision we have, as far as possible, maintained a uniform criterion; and, after rules have been settled, we have applied the same indiscriminately to both litigants.

Table showing results of election in all municipalities and precincts

In accordance with the result shown in this table it becomes our duty to reverse, as we hereby do reverse, the judgment which is the subject of appeal in this case, and we hereby declare that the contestant, Juan T. Lucero, was elected governor of the Province of La Union at the general election held on June 6, 1922, by a plurality of twenty-four (24) votes over the contestee; and the said contestant is entitled to assume said office upon notification of this judgment to the board of canvassers of the Province of La Union and service of a copy of the decision upon the contestee.

The appellee will pay the costs in the Court of First Instance, except witness fees and traveling expenses. No costs will be allowed in this instance.

From this resolution as to costs three of the Justices, namely, the Chief Justice, Mr. Justice Avanceña and the author of this opinion, dissent, being of the opinion that under section 482 of the Administrative Code the successful contestant is entitled to full costs of both instances.

Araullo, C. J., Avanceña, Villamor, Ostrand and Romualdez, JJ., concur.

Separate Opinions

JOHNS, J., dissenting:

In the furnishing of his bond on appeal the appellant did not comply with the statutory requirements, and, for such reason, the motion to dismiss the appeal should have been sustained. It appears that about 15,000 votes were cast at the election. The lower court found that De Guzman was elected by a substantial majority. The majority opinion finds that Lucero was elected by twenty-four votes.

The questions involved on the appeal are largely questions of fact upon which the lower court found in favor of De Guzman.

In cases of this nature, in particular, the findings of fact of the lower court should be given some weight and the benefit of any doubt.

The findings of the lower court are complete and exhaustive, and he saw and heard the witnesses testify.

All things considered, the judgment of the lower court should be affirmed. As to costs I agree with the majority opinion.

For such reason, I dissent.

Johnson, J., concurs.

Batas Pinas