PhilippineLaw.

info Jurisprudence 1941 November

PhilippineLaw.info Jurisprudence Phil. Rep. Vol. 73

G.R. No. 48641, Gallego and Verra,

73 Phil. 453
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
November 24, 1941
G.R. No. 48641
PEDRO GALLEGO, petitioner,
vs.
VICENTE VERRA, respondent.
OZAETA, J.:
This case is before us on petition for certiorari to review the decision
of the Court of Appeals affirming that of the Court of First Instance of
Leyte, which declared illegal and with the petitioner's election to the
office of municipal mayor of Abuyog, Leyte, in the general elections
of December, 1940, on the ground that he did not have the
residence qualification, ordered that he be ousted from said office.
Respondent Vicente Verra (petitioner below) was the unsuccessful
opponent of the petitioner Pedro Gallego, who was declared elected
by the municipal board of canvassers with a majority of nearly 800
votes.
The undisputed facts as found by the trial court and the Court of
Appeals may be briefly stated as follows:
Pedro Gallego is a native of Abuyog, Leyte. After studying in the
Catarman Agricultural School in the province of Samar, he was
employed as a school teacher in the municipality of Catarman,

Samar, as well as in the municipalities of Burawen, Dulag, and

Abuyog, province of Leyte, and school teacher of Abuyog, Leyte, and
presented his candidacy for municipal mayor of his home town, but
was defeated. After his defeat in that election, finding himself in
debt and unemployed, he went to Mindanao in search of a job. He
first went to Oriental Misamis, but finding no work there he
proceeded to the sitio of Kaato-an, municipality of Malaybalay,
Bukidnon, whereat he arrived on June 20, 1938, and immediately
found employment as nurseryman in the chichona plantation of the
Bureau of Forestry. On July 30 of the same year he returned to
Abuyog because he had been offered an employment as teacher in
the public school of the barrio of Union, municipality of Sogod,
Leyte; but as he did not accept the offer he returned to Kaato-an on
August 23, 1938, and resumed his employment there as nurseryman
of the Bureau of Forestry. He stayed in the chinchona plantation until
he resigned in September 1940. But during the period of his stay,
there, his wife and children remained in Abuyog, and he visited
them in the month of August of the years 1938, and 1940. Altho the
Government offered him a free house in the chinchona plantation,
he never took his family there. Neither did he avail himself of the
offer of the Government of a parcel of the hectares of land within
the reservation of the chinchona plantation. He and his wife own real
property in Abuyog, part of which he acquired during his stay in
Malaybalay.
Nevertheless, On October 1, 1938 he registered himself as an
elector in precinct No. 14 of Lantapan, municipality of Malaybalay,
Bukidnon, and voted there in the election for assemblymen held in
December, 1938. The trial court noted that in his voter's affidavit
(exhibit B) he did not fill the blank space corresponding to the length
of time he had resided in Malaybalay. On January 20, 1940, he
obtained and paid for his residence certificate from the municipal
treasurer of Malaybalay, in which certificate it was stated that he
had resided in said municipality for one year and a half.

Based upon the facts stated in the next preceding paragraph,

namely, (1) registration as a voter, (2) his having actually voted in
Malaybalay in the 1938 election for assemblymen, and (3) his
residence certificate for 1940, the trial Court of Appeals declared
that the herein petitioner Pedro Gallego had acquired a residence or
domicile of origin in the municipality of Malaybalay, Bukidnon, and
had lost his domicile of origin in the municipality of Abuyog, Leyte,
at the time he was elected mayor of the latter municipality, and,
that, therefore, his election was void, following the decisions of this
Court in the cases of Tanseco vs. Arteche, 57 Phil., 227, and Nuval
vs. Gutay, 52 Phil., 645.
In this Court the petitioner assigns the following errors:
1. The Court of Appeals erred in holding that the petitioner Pedro
Gallego was a legal resident of Malaybalay, Bukidon, and not of
Abuyog, Leyte, at the time of his election as municipal mayor of the
latter municipality on December 10, 1940.
2. The Court of Appeals erred in affirming the decision of the trial
court holding the election of Pedro Gallego to the office of municipal
mayor of Abuyog, Leyte, null and void and ordering the exclusion of
Gallego from the office to which he was elected.
The only question presented is whether or not Pedro Gallego had
been resident of Abuyog for at one year prior to December 10, 1940.
That question may be approached from either of two angles: Did he
lose his domicile in Abuyog by the mere fact that he worked in
Malaybalay as a government employee, registered himself as a
voter and voted there in the election for assemblymen in December,
1938, and secured his residence certificate there for the year 1940;
and assuming that he did, had he reacquired his domicile of origin at
least one year prior to his election as mayor of Abuyog on December
10, 1040?

The term "residence" as used in the election law is synonymous with

"domicile" which imports not only intention to reside in a fixed place
but also personal presence in that place, coupled with conduct
indicative of such intention (Nuval vs.Guray, 52 Phil., 645). In order
to acquire a domicile by choice, there must concur (1) residence
or bodily presence in the new locality, (2) an intention to
remain there, and (3) an intention to abandon the old
domicile. In other words, there must be an animus non
revertendi and an animus manendi. The purpose to remain in or at
the domicile of choice must be for an indefinite period of time. The
acts of the person must conform with his purpose. The change of
residence must be voluntary; the residence at the place chosen for
the domicile must be actual; and to the fact of residence there must
be added the animus manendi. (17 am. Jur., section 16, pages 599601.)
In the light of these principles, we are persuaded that the facts of
this case weigh heavily against the theory that the petitioner had
lost his residence or domicile in Abuyog. We believe he did not
reside in Malaybalay with the intention of remaining there
indefinitely and of not returning to Abuyog. He is a native of Abuyog.
Notwithstanding his periodic absences from there previous to 1937,
when he was employed as teacher in Samar, Agusan, and other
municipalities of Leyte, he always returned there. In the year 1937
he resigned as a school teacher and presented his candidacy for the
office of mayor of said municipality. His departure therefrom after
his defeat in that election was temporary and only for purpose of
looking for employment to make up for the financial drawback he
had suffered as a result of his defeat at the polls. After he had found
employment in Malaybalay, he did take his wife and children
thereto. He bought the offer of a free house by the government. He
bought a piece of land in Abuyog and did not avail himself of the
offer of the Government of ten hectares of land within the chichona
reservation in Malaybalay, where he worked as a nurseryman.

During the short period of about two years he stayed in Malaybalay

as a government employee, he visited his home town and his family
no less than three times notwithstanding the great distance
between the two places.
The facts of his case are more analogous to those of Larena vs.
Teves (61 Phil., 36), Yra vs. Abao (52 Phil., 380), and Vivero vs.
Murillo (52 Phil., 694) than to those of Nuval vs. Guray (52 Phil.,
645) and Tanseco vs. Arteche (57 Phil., 227) which were followed
herein by the Court of Appeals. In the Teves case this Court, in
reversing the judgment of the trial court, among other things said:
In this case the respondent-appellant, Pedro Teves, from the year
1904 has had his own house in the municipality of Dumaguete,
Oriental Negros, wherein he has constantly been living with his
family and he has never had any house in which he lived either
alone or with his family in the municipality of Bacong of said
province. All that he has done in the latter municipality was to
register as elector in 1919, through an affidavit stating that he was a
resident of said municipality; run for representative for the second
district of the province of Oriental Negros and vote in said
municipality in said year; run again for reelection in the year 1922;
launch his candidacy for member of the provincial board of said
province 1925, stating under oath in all his certificates of candidacy
that he was a resident of said municipality of Bacong.
The affidavit made by him upon registering as elector in the
municipality of Bacong in the year 1919, stating that he was a
resident of said municipality; his two certificates of candidacy for the
office of representative for the second district of the Province of
Oriental Negros, which were filed, the former in the year 1919 and
the latter in the year 1922, and the certificate of candidacy for the
office of member of the provincial board filed by him in the year
1925 in every one of which he stated that he was a resident of the

municipality of Bacong, are at most a prima facie evidence of the

fact of his residence in the municipality of Bacong, which is required
by law in order that the corresponding officials could register him as
an elector and candidate, and not conclusive, and may be attacked
in a corresponding judicial proceeding. If, according to the ruling laid
down in the case of Vivero vs. Maurillo cited above, mere
registration in a municipality in order to be an elector
therein does not make one a resident of said municipality; if,
according to constant rulings the word "residence" is
synonymous with "home" or "domicile" and denotes a
permanent dwelling place, to which an absent person
intends to return; if the right to vote in a municipality
requires the concurrence of two things, the act of residing
coupled with the intention to do so; and if the herein
respondent-appellant, Pedro Teves, has always lived with his family
in the municipality of Dumaguete and never in that of Bacong, he
has never lost his residence in Dumaguete. The fact that his
registration as elector in the municipality of Bacong was cancelled
only on April 5, 1934, upon his petition, did not disqualify him to be
a candidate for the office of municipal president of said municipality
of Dumaguete on the ground that, as has been stated in the case
of Yra vs. Abao cited above, registration in the list of voters is not
one of the conditions prescribed by section 431 of the Election Law
in order to be an elector; neither does failure to register as such
constitute one of the disqualifications prescribed in section 432 of
said law. (61 Phil., 36, 39-41.)
Applying the foregoing pronouncements to the facts of present case,
we find sufficient ground for the revocation of the judgment
appealed from. Petitioner also contends that even assuming that he
had lost his residence or domicile in Abuyog, he reacquired it more
than one year prior to December 10, 1940. In support of that
contention he invokes his letter or note, exhibit 9, addressed to
"Varel"(Valeriano Tupa), vice-president of the political faction to

which petitioner belongs, in which note he announced his intention

to launch his candidacy again for municipal mayor of Abuyog as
early as the month of May, 1939. But we do not deem it necessary
to pass upon said contention in view of the conclusion we have
reached that the petitioner did not lose his domicile of origin.
We might add that the manifest intent of the law in fixing a
residence qualification is to exclude a stranger or newcomer,
unacquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that
community; and when the evidence on the alleged lack of residence
qualification is weak or inconclusive and it clearly appears, as in the
instant case, that the purpose of the law would not be thwarted by
upholding the right to the office, the will of the electorate should be
respected. Petitioner is a native of Abuyog, had run for the same
office of municipal mayor of said town in the election preceding the
one in question, had only been absent therefrom for about two years
without losing contact with his townspeople and without intention of
remaining and residing indefinitely in the place of his employment;
and he was elected with an overwhelming majority of nearly 800
votes in a third-class municipality. These considerations we cannot
disregard without doing violence to the will of the people of said
town.
Wherefore, the judgment of the court of appeals is reversed, with
the costs of this instance against the respondent. So ordered.
Diaz, Moran, and Horilleno, JJ., concur.
Abad Santos, J., concurs in the result.