Torres vs. Ribo

A provincial board of canvassers cannot validly act without a quorum, which is a majority of all its members; an election proclamation based on a canvass by a board lacking a quorum is void and does not start the running of the period for filing an election protest. Also, the substitute members designated by the Commission on Elections under Section 159 of the Revised Election Code exercise personal, quasi-judicial powers that are non-delegable, and a person not among those enumerated by law cannot sit as a member even by supposed representation.

In the general elections of 11 November 1947, Bernardo Torres, incumbent Governor Mamerto S. Ribo, and Alejandro Balderian were opposing candidates for provincial governor of Leyte. Because Governor Ribo and two members of the provincial board were themselves candidates, they were disqualified from serving on the provincial board of canvassers under Section 158 of the Revised Election Code. On 20 November 1947, the Commission on Elections, acting under Section 159, appointed the division superintendent of schools, the district engineer, and the district health officer as substitute members. The telegram appointing them was received in Tacloban on 21 November, but the division superintendent and the district engineer were then on the west coast of the province and did not return until 24 November.

• The appointments and the first canvass: The provincial treasurer served as chairman of the board of canvassers. On 22 November 1947, before the division superintendent of schools and the district engineer had returned to Tacloban, five persons met and canvassed the votes: the provincial treasurer, the provincial fiscal, an acting district health officer, Vicente Tizon (assistant civil engineer in the district engineer’s office), and Evaristo Pascual (chief clerk in the office of the division superintendent of schools). Tizon and Pascual sat as “representatives” of the absent appointees. The group proclaimed Mamerto S. Ribo as governor-elect.
• Defective returns: During the 22 November session, the board faced missing or incomplete election returns from several municipalities. The minutes show that certified statements from municipal treasurers were accepted in lieu of the missing returns, and the board decided “that such certified statements … be taken at their face value.” Tizon and Pascual voted on this question.
• The second canvass: On 24 November 1947, the board convened again, this time attended by the provincial treasurer, the provincial fiscal, the district health officer, the division superintendent of schools, the district engineer, and the provincial auditor. A new complete canvass was made, and Ribo was again proclaimed governor-elect.
• The protest and motion to dismiss: Torres filed an election protest. Respondents moved to dismiss, contending that the proclamation of 22 November triggered the running of the protest period and that the subsequent filing was untimely. The trial court agreed and dismissed the protest. Torres argued that the 22 November proceeding was void, making the 24 November proclamation the valid one from which the period should be counted.

• Invalidity of the 22 November canvass: Petitioner argued that Tizon and Pascual were not lawful members of the board of canvassers. The substitute members appointed by the Commission on Elections could not delegate their personal and quasi-judicial functions to other persons. With only three lawful members present, the board lacked a quorum, rendering the canvass and proclamation void.
• Proper reckoning of the protest period: Because the 22 November proclamation was a nullity, the valid proclamation occurred on 24 November. The computation of the period to file an election protest should begin from that date, making the protest timely.

• Validity of representation: Respondents maintained that the assistant civil engineer and the chief clerk could lawfully represent the absent appointees, reasoning that the board’s functions were ministerial and that the district engineer and division superintendent could be represented by their competent subordinates.
• De facto officers: Respondents contended that, in any event, Tizon and Pascual acted as de facto officers, and their participation should not vitiate the 22 November canvass and proclamation.
• Timeliness of the protest: Respondents insisted that the proclamation of 22 November was effective and that the protest, filed beyond the statutory period counted from that date, was time-barred.

• Lawful Composition of the Board: Whether Vicente Tizon and Evaristo Pascual were lawful members of the provincial board of canvassers on 22 November 1947.
• Quorum: Whether the presence of only three lawful members was sufficient for the board to conduct a valid canvass and proclamation.
• De Facto Doctrine: Whether Tizon and Pascual could be considered de facto officers whose acts were valid.

• Lawful Composition of the Board: Tizon and Pascual were not lawful members. Section 159 of the Revised Election Code expressly enumerates the officers who may serve as substitute members: the division superintendent of schools, 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. Under the principle expressio unius est exclusio alterius, no person outside this enumeration may serve. The substitute appointment is personal and the duties involve quasi-judicial functions — the board must, for instance, determine which of two or more returns from the same municipality is genuine, and whether missing returns may be supplied by municipal treasurer certifications. An officer entrusted with discretion cannot delegate it. No evidence showed that the division superintendent or the district engineer delegated their authority; Tizon and Pascual simply presumed to act as representatives. Their participation was unauthorized, and the fact that the returns later received tallied with the treasurer’s certificates did not cure the illegality.
• Quorum: The Revised Election Code does not expressly state how many members constitute a quorum for the provincial board of canvassers, but it must be a majority of all members. The board is composed of six members (the regular members or their substitutes). Three members are not enough; otherwise, two, or even one, could purport to act. Four members — a majority — constitute the quorum. The presence of only three lawful members on 22 November (the treasurer, the fiscal, and the acting district health officer) fell short of the required number. The canvass and proclamation made that day were therefore illegal and of no effect.
• De Facto Doctrine: The claim that Tizon and Pascual were de facto officers was unfounded. A de facto officer is one who has acted under color of title for such length of time and under circumstances of public reputation or acquiescence as to create a presumption of appointment. Tizon and Pascual possessed no appointment, commission, or color of title; there was no public or private acquiescence; and the person most affected, Bernardo Torres, was not notified and was unaware of their assumption of office. The elements of de facto status were entirely absent.

• Expressio unius est exclusio alterius — The express enumeration of substitute members of the provincial board of canvassers in Section 159 of the Revised Election Code excludes all other persons. Neither the Commission on Elections nor the appointed members may substitute any person outside the statutory list.
• Non-delegability of quasi-judicial functions — Officers who exercise judgment and discretion, such as determining the genuineness of election returns, may not delegate their authority. The board of canvassers performs functions that are not purely ministerial; thus, the duties of a substitute member must be performed personally.
• Quorum of the provincial board of canvassers — In the absence of a statutory specification, the quorum of a multi-member body is a majority of all its members. For a six-member provincial board of canvassers, four members are necessary to constitute a quorum. A session without a quorum is illegal and its acts are void.
• De facto officer — One who assumes to act as a public officer must have acted under color of title, for a sufficient period, and with such acquiescence by the public and competent authorities as to create a presumption of lawful appointment. A person who merely represents an absent officer without any appointment or color of title and without notorious possession of the office does not attain de facto status.

• “An officer to whom a discretion is entrusted can not delegate it to another. The powers of the board of canvassers are not purely ministerial … The board exercises quasi-judicial functions, such as the function and duty to determine whether the papers transmitted to them are genuine election returns signed by the proper officers.”
• “This express enumeration excludes other officers. Expressio unius est exclusio alterius. Not even the Commission on Elections may lawfully appoint any person or officer outside of those mentioned. Much less may any one other than those officers act as a member of the provincial board of canvassers by delegation by a substitute member, by the indication of other members of the board, or of his own volition. The appointment of a substitute member is personal and restricted and his powers must be performed directly and in person by the appointee.”
• “Tizon and Pascual eliminated, there were only three lawful members sitting on the board of canvassers on November 22. … There must be a quorum, which is a majority of all the members, or one half their number plus one. In the present case, four constitute the quorum.”

• Ex parte Smith (Okl.) 154, p. 521 — Mentioned as a decision holding that when a member absents himself before completion, the remaining members may complete the canvass and certify the result, emphasizing the importance of the office and the gravity of its functions; used to underscore the non-delegability and significance of the board’s duties, but not followed as rule on quorum.
• Chumasero vs. Potts, 2 Mont., 242 (writ of error dismissed 92 U.S. 358) — Cited as an example of courts holding that all members must be present for the canvass; not expressly adopted but referenced to highlight the weight of authority on the necessity of full or majority participation.
• 20 C.J., pp. 199, 201-202, 1053 — Referred to for the directory nature of the meeting timeline, the quasi-judicial function of determining the genuineness of returns, and the definition of de facto officers, respectively.

• Section 158, Revised Election Code — Designated the regular members of the provincial board of canvassers; used to establish that the incumbent governor and two board members were disqualified, triggering the need for substitutes.
• Section 159, Revised Election Code — Enumerated the officers to be appointed by the Commission on Elections as substitute members. Applied through the expressio unius principle to bar Tizon and Pascual from sitting, because they were not among the listed officers.
• Section 160, Revised Election Code — Prescribed the timeline for the board’s meeting and canvass; declared directory, meaning it did not authorize completing the canvass before all returns were in.
• Section 162, Revised Election Code — Provided for the return of defective statements to the board of inspectors for correction; implied that the board must have proper returns, reinforcing the view that using municipal treasurer certificates in lieu of missing returns required judgment.

Justices Paras, Feria, Perfecto, and Bengzon concurred.

None.