G.R. No. 140179 - Fermo vs. Commission on Elections

Case Summary (G.R. No. 140179)

Election Setting and the Canvassing Arrangements

Mamerto S. Ribo was the incumbent provincial governor and he ran for reelection. Along with him, two members of the provincial board were candidates. Because Ribo and the two provincial board members were disqualified from forming parts of the provincial board of canvassers by reason of their candidacy, the Commission on Elections—pursuant to Section 159 of the Revised Election Code—sent a telegram dated November 20 and received on November 21 in Tacloban, Leyte, appointing specified officers as substitutes: the division superintendent of schools, the district engineer, and the district health officer. The record noted that these substitute officers might assume office upon receipt of their appointments.

The November 21–22 Canvass and the Issue of Substitution

It was not disputed that on the date of the telegram’s receipt, the division superintendent of schools and the district engineer were on the west coast of the province and did not return to Tacloban until November 24. Nevertheless, on November 22, 1947, a provincial board of canvassers meeting proceeded with the participation of key officials. The chair was the provincial treasurer, identified as F. Martinez; other participants included Gregorio Abogado (provincial fiscal), Vicente Tizon (assistant civil engineer in the district engineer’s office), Evaristo Pascual (chief clerk in the office of the division superintendent of schools), and W. Enage (acting district health officer). In that meeting, the board canvassed the votes for provincial governor and other offices and proclaimed Ribo as Governor-elect. The record further stated that Tizon and Pascual sat as members “representing the district engineer and the division superintendent of schools respectively.”

On November 24, 1947, the provincial board again met, attended by the provincial treasurer, provincial fiscal, district health officer, division superintendent of schools, district engineer, and provincial auditor. A new canvass was then made, and Ribo was again proclaimed elected as provincial governor.

Conflicting Trial Court Rulings on the Legality of Tizon and Pascual

When the matter was first taken up, Judge Victoriano ruled that Tizon and Pascual were not lawful members of the provincial board of canvassers. On motion for reconsideration, Judge Edmundo Piccio reversed. He reasoned that it would be absurd to suppose that the district engineer and the division superintendent could not be represented by their assistants, and he treated it as unreasonable to deny delegation of prerogatives solely on the theory that power belonged exclusively to the Commission on Elections.

In addressing the reversal, the Supreme Court observed that a correction to Judge Piccio’s statement was warranted, although the Court found the point not material. The record did not show, and there was no pretension by the protestee, that the division superintendent of schools and the district engineer had delegated authority to Pascual and Tizon. The Court also found it unsupported as to whose instance or suggestion the two allegedly acted in representation.

Statutory Framework and the Non-delegability of Canvassing Functions

The Supreme Court anchored its analysis on Sections 158 and 159 of the Revised Election Code. Section 158 designates the officers who comprise the provincial board of canvassers. Section 159 provides for the appointment of substitute members by the Commission on Elections in case of absence or incapacity. The Court emphasized the express enumeration in Section 159, which included the division superintendent of schools, the district engineer, the district health officer, the register of deeds, the clerk of the Court of First Instance, and the justice of the peace of the provincial capital. The Court applied the maxim expresio unius est exclusio alterius to stress that the enumeration excludes other officers. It held that the Commission on Elections likewise could not lawfully appoint persons outside the listed officers, and still less could anyone other than the appointed substitute officers act as members by delegation, by indication of other members, or by personal volition.

The Court characterized the appointment of substitutes as personal and restricted, requiring the substitute appointee to perform the assigned powers directly and in person. Otherwise, the authority to appoint substitutes under Section 159 would be taken away. The Court further declared that an officer entrusted with discretion cannot delegate it to another, and it rejected the trial court’s characterization of canvassing powers as purely ministerial.

In particular, the Court held that the board exercises quasi judicial functions. It cited as an example the duty to determine which election returns are genuine where more than one return from the same municipality is received. The Court viewed the canvassing board’s task in this case as requiring the use of judgment, not mechanical acts.

Quasi-judicial Canvassing on November 22 and the Vote Certification Based on Incomplete Returns

The Supreme Court focused on what occurred during the November 22, 1947 meeting. It held that the board on that date was confronted with matters requiring judgment. The minutes reflected that returns from four municipalities were incomplete or entirely missing. The provincial treasurer reported the missing returns; the board considered certified statements from municipal treasurers showing votes cast, taken in lieu of missing election returns to avoid delay. The minutes showed that certain precincts lacked election returns for board members and the governor. The record stated that certified copies of election returns were later received during the session, and that missing returns were also received during the session; nonetheless, the Court held that the eventual tally with the certificates did not cure the mistake committed.

The Court treated the canvass on November 22 as premature and illegal because the board was dealing with documents that were not returns at all. It invoked Section 162 of the Revised Election Code, which provides that if it clearly appears that some requisite in form has been omitted in statements, the board must return the statements to the corresponding board of canvassers for correction. In the Court’s view, the board did not have defective returns that could be returned for correction; it had papers not constituting the election returns required by law.

The Supreme Court also discussed the timing requirements in Section 160, which states that the provincial board of canvassers shall meet as soon as possible within fifteen days following the election and shall proceed to make a canvass of all votes as soon as all the statements are before it but not later than fifteen days following the date of the election. The Court held these provisions to be directory and not to authorize completion of the canvass and proclamation before all required returns were in.

Rejection of the De Facto Officer Theory

The protestee argued that, even if the canvass was defective, Tizon and Pascual should be regarded as de facto officers. The Supreme Court rejected the argument for lack of legal basis. It reiterated that a de facto officer is one who acts under color of title with reputation and acquiescence sufficient to afford presumptions of lawful appointment or election, and that the public and public authorities must have relied on the officer’s assumed status without inquiry. The Court found that neither Tizon nor Pascual met these conditions. They acted without appointment, commission, or any color of title to the office. It found also that there was no acquiescence, and that Bernardo Torres, the person most affected, was not notified and was unaware of the assumption.

Effect of the Illegality: Composition of the Board and Quorum

When Tizon and Pascual were excluded as unlawful members, the Supreme Court noted that only three lawful members remained in the November 22 canvass. Under Section 159, the provincial board of canvas

Case Syllabus (G.R. No. 140179)

The case arose from an appeal by Bernardo Torres from an order of the Court of First Instance of Leyte dismissing a motion of protest on the ground that it was filed out of time.
The central dispute required the Court to determine whether the period for filing the protest should be counted from November 22 or November 24, 1947.
The Court ultimately resolved the appeal by holding that the November 22, 1947 meeting of the provincial board of canvassers and the consequent proclamation of the protestee were illegal and of no effect, thereby rendering any reliance on that proclamation for the computation immaterial.
The Court refrained from discussing other assigned errors after reaching its dispositive conclusion.

Parties and Procedural Posture

Bernardo Torres acted as protestant and appellant.
Mamerto S. Ribo and Alejandro Balderian acted as respondents and appellees.
The Court of First Instance of Leyte dismissed Torres’s motion of protest because it found the protest filed out of time.
The appeal presented for review the lower court’s determination of the starting date for the computation of the filing period.
The Supreme Court reversed the appealed order and assessed costs against the appellees.

Key Electoral Setting

The parties ran as opposing candidates for provincial governor of Leyte in the general elections held on November 11, 1947.
Mamerto S. Ribo, who was then provincial governor, and the two members of the provincial board, were candidates and thus were disqualified to serve as members of the provincial board of canvassers under Section 158 of the Revised Election Code.
In response to the disqualifications, the commission on elections issued a telegram dated November 20 and received on November 21 in Tacloban, appointing specified officers as substitute members pursuant to Section 159.
The substitutes included the division superintendent of schools and the district engineer, both of whom were not present in Tacloban until November 24.
Meanwhile, the canvass proceeded and Mamerto S. Ribo was proclaimed Governor-elect on November 22, and the board later conducted a further canvass and proclamation on November 24.

Composition of Canvassers

On November 22, 1947, the canvass was performed by the provincial treasurer (as chairman), the provincial fiscal, and other personnel, including Vicente Tizon and Evaristo Pascual who sat as members representing the district engineer and the division superintendent of schools, respectively.
On November 24, 1947, the provincial board of canvassers met again with attendance that included the district health officer, the division superintendent of schools, the district engineer, and the provincial auditor, among others.
The dispute centered on whether Tizon and Pascual were lawful members of the provincial board of canvassers on November 22.
The Court treated the legality of their participation as decisive to the validity of the canvass and proclamation made that date.

Divergent Lower Court Rulings

Judge Victoriano, who initially took cognizance of the matter, ruled that Tizon and Pascual were not lawful members of the provincial board of canvassers.
On motion for reconsideration, Judge Edmundo Piccio reversed.
Judge Piccio reasoned that it would be absurd to deny representation by assistants who were competent and qualified, and he rejected the argument that the Commission on Elections alone held prerogatives that could not be delegated.
The Supreme Court observed that Judge Piccio’s decision required correction on a material point because the record did not show lawful delegation by the named substitute appointees.

Supreme Court’s Statutory Interpretation

The Court explained that Section 158 of the Revised Election Code designates the officers who comprise the provincial board of canvassers.
The Court further explained that Section 159 enumerates the officers the commission on elections must appoint as substitute members in cases of absence or incapacity of any member named in Section 158.
The Court held that the express enumeration under Sections 158 and 159 excludes other persons, invoking the maxim expressio unius est exclusio alterius.
The Court ruled that not even the commission on elections may appoint persons or officers outside those mentioned in Section 159.
The Court concluded that an officer named in Section 159 cannot treat the power as delegable by a substitute member to others.
The Court treated the appointment of a substitute member as personal and restricted, and it held that the substitute’s powers must be exercised directly and in person by the appointee.
The Court re