Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

JOSE LINO LUNA, petitioner-appellant,

Ramon Diokno and Agapito Ygnacio for petitioner.

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 ½ 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.