[ G.R. No. 12281. February 28, 1917 ] 36 Phil. 360
[ G.R. No. 12281. February 28, 1917 ]
TIMOTEO BERMUDEZ, PETITIONER, VS. THE COURT OP FIRST INSTANCE OF TAYABAS ET AL., RESPONDENTS. D E C I S I O N
TRENT, J.:
This is an original action in the Supreme Court, the object of which is to compel the respondent judge, by mandamus, to reinstate a certain election contest and to proceed with the trial thereof.
The demurrer to the petition having been overruled in a minute order dated November 7, 1916, and the respondents having filed their answer, the case was submitted, after argument, upon the merits. The facts are these:
At the general election held on June 6, 1916, Timoteo Bermudez, Leoncio Sena, and Severino Martinez were opposing candidates for the office of municipal president of Pagbilao, Province of Tayabas. Sena was proclaimed elected by the municipal board of canvassers on June 7, 1916. Bermudez filed his motion contesting the election on June 21, 1916, and duly notified Sena and Martinez thereof on the 26th and 28th of that month, respectively. Sena alone appeared, and by written motion, dated July 1, 1916, moved the court to dismiss the contest for the following reasons;
“(2) That the motion of protest was not served on this respondent or on the other candidate voted for, either before or at the time it was presented or within the two weeks’ period allowed by law for its presentation, and such notification was only served on the respondent on June 26, 1916, and on the other candidate, long afterwards.
“(3) That, furthermore, the said motion of protest was not entered in the registry of the clerk of the court within the period of two weeks subsequent to the canvass made by the municipal board.”
Paragraph (1) of the motion to dismiss, refers to the promulgation of the canvassing board’s proclamation, and paragraph (4) contains the prayer for the relief sought.
The trial court’s decision upon the motion reads:
“After a consideration of the motion to dismiss, filed in this case by the respondent, it appears that, according to the notice of protest, the municipal board of canvassers, on June 7, 1916, proclaimed the respondent Sena elected to the office of municipal president of Pagbilao, and that the notice of protest was not served by the petitioner on the respondent until June 28th, that is, until five days after the expiration of the legal period of two weeks.
“In view of the preceding facts disclosed by the record, the court holds that it has not acquired jurisdiction in the case, as the notice of protest was served after the expiration of the legal period. The question at issue has been extensively discussed by learned counsel on both sides, but in the opinion of the court it is already clearly and positively decided in favor of the herein respondent, by the Honorable Supreme Court in its decision in the case of Navarro vs. Veloso (23 Phil. Rep., 625).
“Therefore, without further necessity of a ruling on the additional motion for alleged failure to serve notice, of the protest on all the candidates voted for, this case is hereby dismissed for lack of jurisdiction of the court. The costs shall be assessed against the petitioner, Timoteo Bermudez. So ordered.
“Given in Lucena, Tayabas, this 25th day of July, 1916.” The additional motion, mentioned in the last paragraph of the decision, does not form a part of the record in the case under consideration.
From the motion and the decision it will be seen that three questions, all relating to the jurisdiction of the court, were-submitted for determination. These questions were: (1) Were the notices which were served upon Sena arid Martinez on the 26th and 28th of June, respectively, whereby they were notified of the filing of the contest, a compliance with the provision of the Election Law? (2) Was the motion of contest filed in court within the time required by law? And (3) were all the candidates voted for notified? (Additional motion.)
During the hearing of the demurrer and also the hearing of the case upon the merits, counsel for the respondents further urged that the lower court was without jurisdiction to proceed with the contest, because the notices served upon Sena and Martinez did not fix a day for the hearing of the case as required by section 27 of Ajct No. 1582, as amended by section 2 of Act No. 2170, effective February 1, 1912, and sections 576 and 578 of the Administrative Code, effective July 1, 1916.
As to the second question, it is sufficient to say that the motion of contest was filed within two weeks (excluding the 7th and including the 21st) after the promulgation of the municipal canvassing board’s proclamation. The first question and the one raised in this court relate to the nature and character of the notice which must be served upon all candidates voted for. The solution of these questions requires an examination of the statutory provisions governing judicial election contests. Section 27 of Act No. 1582, as amended by section 2 of Act No. 2170 reads:
“Election contests.—The Assembly shall be the judge of the elections, returns, and qualifications of its members. The time for the filing of (the contests, the notification thereof, and the expenses, costs, and bonds shall be fixed by resolution of the Assembly which shall be effective until repealed. Contests in all elections for the determination of which provision has not been made otherwise shall be heard by the Court of First Instance having jurisdiction in the judicial district in which the election was held, upon motion, by any candidate voted for at such election. The contests shall be filed with the court within two weeks after the election and shall be decided by the same as soon as possible after the hearing of the contest. Such court shall have exclusive and final jurisdiction, except as hereinafter provided, and shall forthwith cause the registry lists and all ballots used at such election to be brought before it and examined, and to appoint the necessary officers therefor and to fix their compensation, which shall be payable in the first instance out of the provincial treasury, and to issue its mandamus directed to the board of canvassers to correct its canvass in accordance with the facts as found. If in any case the court shall determine that no person was lawfully elected it shall forthwith so certify to the Governor-General, who shall order a special election to fill the office or offices in question as herein before provided: Provided, however, That an appeal may be taken to the Supreme Court, within ten days, from any final decision rendered by the Court of First Instance on contests of elections for provincial governors, for the review, amendment, repeal, or confirmation of such decision, and the procedure thereon shall be the same as in a criminal cause.
“Before the court shall entertain any such motion or admit an appeal, the party making the motion or filing the appeal shall give bond in an amount fixed by the court with two sureties satisfactory to it, conditioned that he shall pay all expenses and costs incident to such motion or appeal, or shall deposit cash in court in lieu of such bond. If the party paying such expenses and costs shall be successful they shall be taxed by the court and entered and be collectible as a judgment against the defeated party.
“All proceedings under this section shall be upon motion with notice of not to exceed twenty days to all candidates voted for and not upon pleadings or by action, and shall be heard and determined by the court in the judicial district in which the election was held regardless of whether said court be at the time holding a regular or stated term. In such proceedings the registry list as finally corrected by the board of inspectors shall be conclusive as to who was entitled to vote at such election.
“The clerk of the court in which any such contest is instituted shall give immediate notice of its institution and also of the determination thereof to the Executive Secretary.”
Acts Nos. 1582 and 2170 were repealed by Act No. 2657, known as the Administrative Code. Sections 576 and 578 of this Code read as follows:
“Sec. 576. Contested election to office in general.—Contests in all elections for the determination of which provision has not been made otherwise shall be heard by the Court of First Instance having jurisdiction in the judicial district in which the election was held, upon motion by any candidate voted for at such election. The contests shall be filed with the court within two weeks after the election and shall be decided by the same as soon as possible after the hearing of the contest. Such court shall have exclusive and final jurisdiction, except as hereinafter provided, and shall forthwith cause the registration lists and all ballots used at such election to be brought before it and examined, and to appoint the necessary officers therefor and to fix their compensation, which shall be payable in the first instance out of the provincial treasury, and to issue its mandamus directed to the board of canvassers to correct its canvass in accordance with the facts as found.
“Sec. 578. Mode of procedure in court cases.—Proceedings for the judicial contest of an election shall be upon motion with notice of not to exceed twenty days to all candidates voted for and not upon pleadings or by action, and shall be heard and determined by the court in the judicial district in which the election was held regardless of whether said court be at the time holding a regular or stated term. In such proceedings the registration list as finally corrected by the board of inspectors shall be conclusive as to who was entitled to vote at such election.
“The clerk of the court in which any such contest is instituted shall give immediate notice of its institution and also of the determination thereof to the Executive Secretary.”
Section 27 of Act No. 1582, as originally enacted, provided that:
“Contests in all elections for the determination of which provision has not been made otherwise shall be heard by the Court of First Instance having jurisdiction in the judicial district in which the election was held, upon motion by any candidate voted for at such election, which motion must be made within two weeks after the election. * * *.”
While the question whether the court acquired jurisdiction of the persons of the contestees, Sena and Martinez, must be determined in accordance with section 27 of Act No. 1582, as amended, and not under the provision of sections 576 and 578 of Act No. 2657, because the latter were not in force at the time, yet the provision of both are essentially the same.
The “motion” of contest when filed within the time required by the Acts, gives the court jurisdiction of the subject-matter of the proceedings, provided the necessary jurisdictional facts are alleged. The statute is silent as to the form which the motion shall take, and the fullness and particularity of its averments. It should state, of course, in a legal, logical form the facts constituting the grounds of complaint, with the name of the court wherein it is to be filed, the fact that the contestant is one of the candidates voted for, and that the contestee, or one of them, was declared elected, otherwise it is demurrable (Navarro vs. Veloso, 23 Phil. Rep., 625). Again, the statute is silent as to whether the contestees must answer the motion of contest in writing. That they have a right to and should do so, cannot be doubted. This is the established practice in this jurisdiction in case a demurrer is not interposed. The result is that judicial election contests are, and must necessarily be, what the term implies—adversary proceedings by which the matters in controversy may be settled upon issues joined. The “motion” which institutes the contest is not one of those motions made to the court in ordinary practice by a party to a case for the purpose of obtaining some rule or order. It is the contestant’s statement of facts or combination of facts which gives rise to his right of contest and which, as we have stated, institutes the proceedings. All the proceedings must be upon this motion. There can be no contest without it. It serves the purpose of a complaint in an ordinary civil action.
Under section 27, supra, the Court of First Instance was authorized to hear and determine all questions touching the legality of the election and that authority was continued by the enactment of sections 576 and 578 of Act No. 2657. But before the court could exercise such power it must have acquired jurisdiction of the subject-matter of the proceedings and of the persons of all the candidates voted for. The former is acquired in the manner above indicated, and the latter can only be acquired by giving the candidates due and timely notice of the motion of contest. That this is the character of the notice, there can be little room for doubt. The words “with notice” refer to the “motion” upon which all the proceedings are based. To hold that the “notice” is one whereby the contestant fixes a definite date for the hearing of the contest would be contrary to the clear intent of the legislature and the established practice in all civil adversary proceedings wherein important rights are determined. The date for the hearing of the contest cannot be fixed before the necessary parties are brought into court and are given an opportunity to prepare their defense. And furthermore, the fixing of the date for the hearing of the contest in the “notice” would, in many instances, be a useless procedure because the judge of the district might then be holding court in some other part of the province or subprovince, or in an entirely different province, as in the instant case, where section 5 of Act No. 2347 requires that the terms of court for the Fourteenth District shall be as follows: “At Lucena, Province of Tayabas, on the first Tuesday of January, July,and November of each year. At Boac, subprovince of Marinduque, on the second Tuesday of March and August of each year.” Notwithstanding the fact that the court is required to hear and determine the contest in the judicial district in which the election was held regardless of whether it be at the time holding a regular or stated term, yet no one will contend that the judge must adjourn court in the province or subprovince and go to another for the sole purpose of hearing a municipal election contest on a date fixed by one of the parties. The creation of such a condition of affairs cannot be attributed to the Legislature. The “notice” must, therefore, necessarily be a notification of the motion of contest and serves the purpose of a citation or summons. When the motion is filed and the notice is thus given, the contest is then in court and must be determined as soon as possible, consistent with the due administration of justice and in accordance with the ordinary rules of practice.
It is further contended that if it be held that the notice serves the purpose of a citation and not the fixing of a date for the hearing of the contest, still the court was without jurisdiction for the reason that Martinez was not notified until the 28th of June, which was on the twenty-first day after the promulgation of the proclamation. If the twenty days began to run on the 8th, then the contention of counsel is well founded. But we are of the opinion that the true date from which the twenty days start, is the date of the filing of the motion in court. All the proceedings must be upon the motion with notice of not to exceed twenty days to the candidates. The notice, which must be accompanied by a copy of the motion, or which, at least must contain the essential allegations in the motion, cannot be served until it is prepared, and while the motion is a step in the proceedings, no judicial action can be had thereon until it is filed in court. The contestant is given two full weeks from the date of the promulgation of the canvassing board’s proclamation within which to file in court his motion of contest. He is within the time if he files it on the last day of the two weeks. The whole of the two weeks may be required in order to make the necessary investigations, to reach the capital of the province, employ counsel, and prepare and file the motion. The motion in the instant case having been filed on the last day, there remained only six days to notify the contestees, if the twenty days began to run on the 8th. It is practically impossible to reach some of the municipalities from the provincial capitals in six days. It would be going too far to hold that the Legislature,after conferring a right upon a citizen, made the exercise of it impossible. That the Legislature did not intend to do such a thing appears from the wording of the statute, which provides, as above indicated, that “all (judicial) proceedings” must be upon the motion, with notice of not to exceed twenty days. We, therefore, see no reason for reversing our former holding to the effect that the court acquired jurisdiction of the contestees, Sena and Martinez, by virtue of the notices served -upon them at the times stated.
The question whether all the candidates voted for were notified of the motion of contest is one of fact which the trial court did not decide. We have frequently held in cases of this character that where a dispute arises in the Court of First Instance as to whether certain persons, who receive a few votes, were in fact candidates for that particular office, must be determined from the evidence which the parties may offer. The petitioner must be given an opportunity to prove, if he can, that the other parties were not candidates for the office of president of Pagbilao. The trial court is the proper place for the determination of this question.
For the foregoing reasons, it is hereby ordered that a writ of mandamus issue to the respondent judge, directing him to reinstate the contest and to proceed with the hearing thereof in accordance with this opinion, with costs against the respondents, Leoncio Sena and Severino Martinez. So ordered.
Torres, Carson, and Araullo, JJ., concur.