G.R. No. L-28349 December 28, 1967
CONSUELO V. CALO, JOSE T. GONZALES, PASTOR D. AGO, GENARO B. ASIS and VICENTE C. ROSALES, petitioners, vs. HON. MANUEL L. ENAGE, as District Judge of the Court of First Instance of Agusan, Branch II, RAFAEL C. AQUINO, BASILISA ATEGA KITTILSTVEDT, NOLI G. CORTES, SULPICIO R. LAGNADA, EDUARDO D. MERCADO, THE PROVINCIAL TREASURER, THE PROVINCIAL SHERIFF OF AGUSAN, AND THE PROVINCIAL BOARD OF CANVASSERS FOR THE PROVINCE OF AGUSAN, respondents.

FACTS

This is a petition for certiorari, prohibition, and mandamus to annul an order dated December 1, 1967, issued by respondent Judge Manuel L. Enage of the Court of First Instance of Agusan. The order directed a judicial recount of votes cast in certain municipalities in Agusan during the November 14, 1967 elections and restrained the provincial board of canvassers from canvassing the election returns for provincial offices. The order was issued upon the petition of respondents Rafael C. Aquino (candidate for Governor), Basilisa K. Atega (candidate for Vice Governor), and others, all Nacionalista Party candidates. They claimed that the copies of election returns marked “COPY FOR THE NACIONALISTA PARTY” gave them a different and larger number of votes than the corresponding copies transmitted to the Provincial Treasurer, and this discrepancy materially affected the election results. Petitioners Consuelo V. Calo, Jose T. Gonzales, and others, who were the opposing candidates for the same offices, contend that the respondent judge acted in excess of jurisdiction and with grave abuse of discretion in ordering a recount before the provincial board of canvassers started its canvass, and that the alleged discrepancy is not a ground for a judicial recount under Section 163 of the Revised Election Code. The Supreme Court issued a temporary restraining order on December 4, 1967, allowing the canvassing to proceed, which was finished on December 13, 1967, but no proclamation was held pending this case.

ISSUE

Whether a judicial recount may be ordered under Section 163 of the Revised Election Code based on a variance between a copy of the election returns in the hands of the provincial treasurer and another copy given to one of the major political parties.

RULING

No. The Supreme Court set aside the order of the respondent judge. The Court held that under Section 163 of the Revised Election Code, a judicial recount is justified only when there is a discrepancy between the different copies of the election returns required to be accomplished by Section 150 of the Code (i.e., the four authentic copies: one for the ballot box, one for the municipal treasurer, one for the provincial treasurer, and one for the Commission on Elections). The copy furnished to a political party is an extra copy not prescribed by the Code and therefore cannot serve as a legal basis for comparison to justify a judicial recount. The Court cited the doctrine in Acuña v. Golez, stating that Section 163 must be construed restrictively to avoid delays in proclamation. Allowing a recount based on discrepancies involving extra copies would create untold opportunities for tampering and delay. The respondent provincial board of canvassers was directed to proceed with the proclamation of the winning candidates.