GR 23601; (September, 1925)

EN BANC

G.R. No. 23601; September 22, 1925

YNCHAUSTI & CO., petitioner,

vs.
BEN F. WRIGHT, Auditor of the Philippine Islands, respondent.

Fisher, DeWitt, Perkins and Brady for petitioner.
The respondent in his own behalf aided by Emiliano Remo, special agent of Bureau of Audits.

STATEMENT

After the formal allegations, the petitioner alleges that it is the agent and operator of the steamship Venus which is used in the coastwise trade of the Philippine Islands. That between February 12 and September 16, 1924, and because there were no adequate facilities in the Philippine Islands, it caused certain heavy repairs and reconstruction work to be done in Hongkong at a cost of $300,004.90, Hongkong currency. That upon the return of the steamer to the Philippine waters, about October 20, 1924, the Insular Collector of the Customs of Manila levied the customs duty payable on such repairs and reconstruction work at P159,960, and made a demand for its payment. That on October 24, 1924, the petitioner paid the money under protest, claiming that such repairs and work were exempt from the payment of customs duty under paragraph 200, section 8, and paragraph 348 section 11, of the Philippine Tariff Act of 1909. That on October 31, 1924, and after an official hearing by him, the Insular Collector of Customs rendered a decision sustaining the protest, and ordered the refund of the money. That copies of the decision were immediately transmitted to the Secretary of Finance and to the defendant Auditor. It is then alleged that the Secretary of Finance failed, within fifteen days, to certify that, in his opinion, the decision ought to be revised by the Court of First Instance of the City of Manila, or to order its removal, by reason of which the decision of the Collector of Customs has become and is now final and conclusive upon the Government of the Philippine Islands, as provided in section 1383 of the Administrative Code. That on November 6, 1924, the respondent, without any authority, addressed a letter to the Insular Collector of Customs asking him to reconsider his decision, and the Insular Collector of Customs denied the request, and affirmed his decision of October 31. That on November 26, 1924, the Insular Collector of Customs drew and signed a warrant for the refund of the import duty, and that the defendant wrongfully and unlawfully refused to do so, and still refuses to countersign the warrant. That the petitioner has no plain, speedy and adequate remedy at law, and it prays for a peremptory writ of mandamus directed to the defendant to countersign the warrant.

For answer, the defendant admits the allegations made in paragraphs 1, 2, 3, 4, 6, and 8 of the petition, and denies all the singular allegations contained in paragraphs 5, 7 9, 10, 11, and 12, with the exception of those which in his further defense may be expressly admitted, and, as a special plea, alleges that the steamship Venus, owned and operated by the petitioner, is a steam vessel, whose tonnage, gross and net, at the time of the repairs, were 987.64 and 597.74, respectively. That prior to February, 1924, the steamship needed certain repairs. That, notwithstanding the existence and availability of adequate facilities in the Philippines, the petitioner caused the repairs to be made in Hongkong. That upon the arrival of the steamer, the Insular Collector of Customs of Manila made the assessment in question, which was paid under protest. That on October 31, 1924, the Insular Collector of Customs sustained the petitioner’s protest, and ordered the refund of the money, and that on the same day the defendant received a copy of the decision. That, notwithstanding the protest of the petitioner, the money in question, upon being paid to, and received by, the Collector of Customs, was covered into the Insular Treasury of the Philippine Government, and became a part of the general unappropriated funds, in accord with section 14, Chapter III, of Act No. 2935. It is then alleged “that to meet refunds of customs duties of taxes erroneously and illegally collected by the Philippine Government, permanent annual appropriations are provided by Act No. 357, as amended by Act No. 1515.” “That the duty and responsibility to examine, audit, settle and revise all accounts and claims for refund of customs duties rest solely and exclusively with the respondent Insular Auditor.” That at once, upon the receipt of the decision of the Collector of Customs, the defendant, pursuant to the powers and duties invested in him by law, caused inquiries and investigations to be made, to ascertain and verify the correctness and veracity of the claim that the repairs could not have been made in the Philippine Islands, for the purpose of determining whether the refund by the Collector of Customs, or the payment for which credit is claimed was actually to be made for objects or purposes authorized by Act No. 357, as amended by Act No. 1515. That on or about November sixth, the defendant, being convinced that adequate facilities for the repairs were afforded, and conscious of the duties and responsibilities invested in him by the Jones Law, wrote a letter to the Insular Collector of Customs, requesting a reconsideration of his decision on the protest, on the ground that it was openly and manifestly contrary to the weight of the evidence in this case, and to the provisions of paragraph 200, section 8, and paragraph 348, section 11, of the Philippine Tariff Act of 1909. That on November 7, the defendant wrote the Secretary of Finance furnishing him with a copy of the letter to the Collector of Customs, and requested the Secretary of Finance to have the decision of the Collector of Customs reviewed by the Court of First Instance of the City of Manila, in the event that the collector refused to reconsider his decision. That on November 12 the defendant, having obtained additional evidence, as a result of his investigation and inquiry, reiterated to the Secretary of Finance his request to have the cause removed to the court for review, reminding him that the period within which the removal should be made would expire on November 14, 1924. That on November 14, 1924, the defendant addressed another letter to the Collector of Customs furnishing him with additional written proof, and again requesting him to review his decision. That his letters to the Secretary of Finance of November 7 and 12 and to the Collector of Customs of November 6 and 14 were never answered. That on November 26, 1924, the Collector of Customs presented to the defendant, for countersignature, the warrant in question in favor of the petitioner for the payment of the claim, which was styled for the payment of petitioner’s claim for the refund of the import duty, entry No. 316654-A, protest No. 14061. That on November 28, the defendant returned the warrant, and informed the Collector of Customs that no action could be taken until after the request of the respondent for a reconsideration of the decision had been passed upon by him. That on the same day, the Insular Collector of Customs returned defendant’s request for a reconsideration, “stating that he finds no justification for reconsidering his decision of October 31, 1924, on said protest No. 14061.” That at the time the petition was filed in this court, the defendant has not yet finally decided whether he would approve or countersign the warrant.

As a further and separate defense, it is alleged that this court has no jurisdiction of the subject-matter, and that the petitioner has another plain, speedy and adequate remedy in the ordinary course of law.

As a part of his answer, the defendant attached to the record a transcript of all the evidence taken by the Collector of Customs at the hearing on the protest and his decision upon such hearing, together with a copy of all the correspondence between the defendant and the Collector of Customs and the Secretary of Finance, and the defendant prays that the suit be dismissed.

To this answer, the petitioner filed a general demurrer upon the ground that it does not state facts sufficient to constitute a defense, and that is the question now before this court.

JOHNS, J.:

By the pleadings, the following facts are admitted:

First. That at the times alleged the plaintiff was the owner of the steamship Venus. That it was taken to Hongkong, and that repairs and overhauling charges were made upon the boilers and thrust shaft, which, in round numbers, cost $300,000 in Hongkong money;

Second. That on the return of the vessel to Manila, the owners were forced to, and did, pay P159,960 as a condition precedent to the docking of the vessel in Philippine waters;

Third. That the money was paid under a duly written protest and upon which the petitioner legally demanded a hearing. That a hearing was duly had upon which evidence was taken, based upon which the Collector of Customs rendered a decision sustaining the protest, and ordering a refund of the money, and that such decision has become and is now final; and

Fourth. That based upon, and in accord with, the decision the warrant in question was drawn and signed by the Collector of Customs and forwarded to the defendant for his signature, who then and ever since has refused to sign it.

Upon such admitted facts, the petitioner contends that the signing of the warrant is a matter over which the Auditor has no discretion, and that his duties are ministerial only.

The defendant contends that he is legally bound by the decision of the Collector of Customs, and that the signing of the warrant is a matter in his discretion. That this court has no jurisdiction of the subject-matter, and that the petitioner has a plain, speedy and adequate remedy at law. That the money has been paid over to the Government Treasury, and that for such reasons mandamus will not lie.

The decision of the Collector of Customs is as follows:

Protest No. 14061.

DECISION

This protest is against the assessment of duty on cost of repairs made at Hongkong to the steamship Venus of Ynchausti & Co., Manila, under paragraph 200 of the Philippine Tariff Act of 1909 at fifty per centum ad valorem instead of exempting the same from duty by virtue of the provisions of paragraphs 200 and 348 of the said Tariff Act.

The only question to be considered in this case is whether the repairs are entitled to the free duty or not, or whether adequate facilities exist in the Philippine Islands for carrying out such repairs or not. In order to give the protestants an opportunity to prove their claim, a hearing was held on October 27, 1924, and the following evidence was produced:

A letter of Fernandez Hermanos to Mariano Yenko, marine Surveyor, acting as marine superintendent for Ynchausti & Co., dated March 8, 1924, in which the former state that they cannot construct a boiler for the S. S. Venus (Exhibit A).

A letter of the Earnshaws Docks and Honolulu Iron Works to Mariano Yenko, dated February 18, 1924, stating that they are unable to construct a new, complete boiler, but that they have a powerful derrick to remove the old one and place a new one (Exhibit B).

A letter of the Earnshaws Docks and Honolulu Iron Works to Ynchausti & Co., dated September 25, 1924, informing the latter that the maximum lifting capacity of their floating derrick is 25 tons (Exhibit C).

A letter of Carlos Pombo to Ynchausti & Co., dated October 9, 1924, advising that it is impossible to construct a boiler with cylinder and a trust shaft for the Venus in the Philippines (Exhibit D).

A letter of the Earnshaws Docks and Honolulu Iron Works to Ynchausti & Co., dated October 10, 1924, certifying that their shops have no adequate facilities to make H.P. cylinder and thrust shaft with thrust blocks for S.S. Venus. They also correct the statement contained in their letter of February 18, 1924, Exhibit B, to the effect that they have found out that the Venus boiler is too heavy for their derrick (Exhibit E).

A certificate of the Hongkong & Whampoa Dock Co., Ltd., stating the weights of the components parts of the boiler built by the same for the Venus (Exhibit F).

A letter of C. B. Nelson, marine surveyor, to Ynchausti & Co., dated October 15, 1924, stating that no vessel of the size of the S.S. Venus has been reconstructed at this port and has “such extensive repairs carried out,” and that the main boiler and trust shaft could not be made at Manila (Exhibit G).

The statements contained in the above letters and certificates have been confirmed by the parties subscribing the same, at the hearing, and have been corroborated by the chief of hall and boiler division of this Bureau. The lack of adequate facilities is, therefore, clearly established and the undersigned is convinced that the repairs to and reconstruction of the steamship Venus could not be effected in the Philippine Islands.

This case is identical with that of Fernandez Hermanos vs. The Insular Collector of Customs (G.R. No. 8667, vol. 30, page 50, of Philippine Reports) and the decision thereon applies hereto.

Protest No. 14061 is, therefore, for the foregoing reasons, sustained and a refund of the customs duty collected is ordered to the protestants.

(Sgd.) V. ALDANESE Insular Collector of Customs.

The decision of Fernandez Hermanos vs. Collector of Customs above cited was rendered on March 6, 1915, and was based on the following statute:

SEC. 8. That the rate of duties to be collected on articles, goods, wares, or merchandise imported into the Philippine Islands, or going into said Islands from the United States or any of its possession except as otherwise provided in this Act, shall be as follows:

xxx; xxx; xxx

200. Boats, launches, and other water craft, set up or knocked down, imported into the Philippine Islands, and cost of repairs made in foreign countries to vessels, or to parts thereof, documented for the Philippine coastwise trade or plying exclusively in Philippine waters and for which repairs adequate facilities are afforded in the Philippine Islands, fifty per centum ad valorem.

“Provided, That upon proof satisfactory to the Collector of Customs that adequate facilities are not afforded in the Philippine Islands for such repairs, the same shall be subject to the provisions of paragraph three hundred and forty-eight of this Act:”

SEC. 11. That the following articles shall be free of duty upon the importation thereof into the Philippine Islands upon compliance with regulations which shall be prescribed in accord with the provisions of each paragraph:

xxx; xxx; xxx

“348. Repairs to vessels documented in the Philippine Islands or regularly plying in Philippine waters, made in foreign countries, upon proof satisfactory to the Collector of Customs that adequate facilities for such repairs are not afforded in the Philippine Islands” (Tariff Act).

It was there held that :

. . . (1) Facilities are not adequate unless, when required, all of the repairs necessary for the safe, convenient and economical operation of the ship can be made by the use of such facilities. (2) If all of the repairs necessary for the safe, convenient and economical operation of the ship cannot be made in the Philippine Islands, then, if made in a foreign port, they may come into the Philippine Islands free of duty. (3) The repairs referred to in the statute are to be regarded as a whole; and the repairs made in a foreign port at one time to a single ship cannot be divided into (a) those which could have been made in the Philippine Islands and (b) those which could not, and duty levied on that portion which could have been made here.

This decision was followed by Gutierrez Hermanos vs. Collector of Customs (39 Phil., 876), in which this court, among other things, said:

Another phase of the Fernandez Hermanos case indicative of a difference between the facts in that case and those before us concerns the weight which the courts should give to the findings of the Insular Collector of Customs. The next to the last paragraph of the Fernandez Hermanos decision reads:

“The question of the control of the discretion of the Collector of Customs under the tariff law in determining whether or not there are adequate facilities in the Philippine Islands for the repair of a given ship is not involved in this case, inasmuch as it is admitted and the Collector has found that there were not adequate facilities in the Philippine Islands for the repair of the ship involved in the case, he declaring that some of the most important repairs could not be made here at all.”

The next to the last paragraph of the decision of the Insular Collector of Customs in this case before us reads:

“This Office is therefore of the opinion and so decides, that there were adequate facilities in the Philippine Islands for doing all of the repair job in question to the steamship Magallanes and that all the repairs done upon said vessels in Hongkong cannot be admitted duty free merely upon the showing that a single piece or part, used in making such repairs, could not be manufactured in the Philippine Islands, in the absence of a showing to the effect that reasonable diligence had been used to obtain the part required.”

In the first case, therefore, the ruling of the Insular Collector of Customs was such as not to involve any reference to the home facilities for repairs, while in the second case he has made express finding to the effect that upon proof satisfactory to him adequate facilities for the repairs are afforded in the Philippine Islands. In line with the repeated decisions of the courts, the confidence which the law imposes in the judgment of the Collector of Customs should not be unduly interfered with by the courts and the same shall be taken as prima facie controlling unless there is clear proof of abuse of discretion. Abuse of discretion by the Insular Collector of Customs is not established.

After the latter decision was rendered, the Philippine Legislature, under the authority conferred by section 10 of the Jones Law, enacted Act No. 2872, approved November 24, 1919, amending the above quoted provisions of paragraph 200, section 8, of the Tariff Law of 1909, to read as follows:

SECTION 1. Paragraph two hundred of section eight of the Act of the Congress of the United States of August fifth, nineteen hundred and nine, entitled “An Act to raise revenue for the Philippine Islands, and for other purposes,” is hereby amended to read as follows:

GROUP 4. Boats and other water craft

“200. Boats, launches, lighters, and other water craft, set up or knocked down, imported into the Philippine Islands, and cost of repairs made in foreign countries to vessels, or to parts thereof, documented for the Philippine coastwise trade and plying usually in Philippine waters and for which repairs adequate facilities are afforded in the Philippine Islands, fifty per centum ad valorem until December thirty-first, nineteen hundred and twenty-four; twenty-five per centum ad valorem on and after January first, nineteen hundred and twenty-five.

“Provided, That upon proof satisfactory to the collector of customs that adequate facilities are not afforded in the Philippine Islands, for such repairs, so that the work cannot be done there reasonably, economically and within a reasonable time, in the judgment of said collector, such repair shall be subject to the provisions of paragraph three hundred and forty-eight of this Act.”

The purpose and intent of the amendment is very apparent. It leaves the whole question to the discretion of the Collector of Customs as to whether or not the work and repairs on a vessel can be done in the Philippine Islands “reasonably, economically and within a reasonable time.” This Act, as amended, was put into legal force and effect by a proclamation of the date December 11, 1919.

Among other things, the Administrative Code provides:

SEC. 1384. By whom cause may be removed into court. ? The removal of a cause into court may be had at the instance of the protesting party or, in case of seizure, at the instance of the owner or agent of the seized property. If the decision of the Insular Collector is adverse to the Government, the cause may also be removed, in the manner hereinafter specified, by order of the Department Head.

SEC. 1386. Removal upon order of Department Head. ? Upon making any decision which may be removed upon the order of the Department Head, the Insular Collector shall immediately transmit a copy of such decision to him and also to the Insular Auditor; and if within fifteen days thereafter the Department Head shall certify that in his opinion the decision ought to be revised by the Court of First Instance in the City of Manila, it shall be the duty of the Insular Collector, upon notification thereof, to transmit the original record said court in the same manner as upon removal by a party other than the Government.

SEC. 1383. Review in Court of First Instance. ? The party aggrieved by the decision of the Insular Collector in any manner brought before him upon protest or by his action or decision in any case of seizure may procure the cause to be removed for review into the Court of First Instance sitting in the City of Manila, in the manner and within the period hereinafter prescribed.

Unless the proper party in interest shall procure the cause to be thus removed into court for review, the action or decision of the Insular Collector shall be final and conclusive against him.

No appeal was ever taken from the above quoted decision of the Insular Collector of Customs, and, as such, it has become and is now final, although it is but fair to say that the defendant requested a reconsideration of the decision, and sought to have an appeal taken from it to the Court of First Instance, which was not done.

Conceding that all of such facts are true, the defendant contends that, notwithstanding such express provisions of the statute, under the terms and provisions of the Jones Law, and as Insular Auditor, he yet has supervision and a discretionary power over such matters, and to that extent and in that particular, the provisions of the Jones Law are superior to, and should prevail over, the provisions of Act No. 2872.

Section 24 of the Jones Law provides that the Insular Auditor shall:

(a) . . . examine, audit and settle all accounts pertaining to the revenues … of the Philippine Government …; and

(b) . . . audit, in accordance with law and administrative regulations, all expenditures of funds … pertaining to… the Government . . . .

By the language of the Act, the defendant is authorized to “audit, examine, and settle accounts.” As to the “expenditures of funds pertaining to the Government,” he is authorized to “audit in accordance with law and administrative regulations.”

It will be noted that the words “examine” and “settle” which are included in, and made a part of, paragraph (a) are omitted in paragraph (b). This is significant. In the case of Powers vs. United States (18 Court of Claims, 275), it is said:

An account is something which must be adjusted and liquidated by arithmetical process.

Words and Phrases, volume 1, First Series, page 87, says:

An account is a list or statement of the monetary transactions, such as payments, losses, sales, debits, credits, etc., in most cases showing a balance or result of comparison between items of an opposite nature, e. g., receipts and payments.

xxx; xxx; xxx

An “account” is a detailed statement of items of debt and credit, or of debt arising out of contracts between parties.

A computation or statement of debts and credits arising out of personal property brought or sold, services rendered, material furnished, and the use of property hired and returned.

“An account is defined to be a detailed statement of mutual demands in the matter of debt and credit between parties, arising out of contracts or some fiduciary relation.”

Page 89:

“The word “account” is a word of wide and varied signification. An account in its most general meaning is a reckoning or statement of items or details. It is not necessary that there should be… items on both sides, for there may be a long account of sales of merchandise, or of materials furnished, embracing only the items of the merchandise delivered or of the work done.”

xxx; xxx; xxx

The term “account” involves the idea of debit and credit. The particular mode of keeping the account, whether on books or loose scraps of paper, or without any written charges, or whether it is all kept in one shape or in different forms, is important.

Page 90:

The stating of a single demand, the amount and validity of which has become unalterably fixed, is not an account within the meaning of Comp. St. 1897, c. 18, sec. 23, requiring the board of country commissioners to examine and settle all “accounts.”

In the instant case there is only one item which grew out of one transaction, and the only question involved was legality of the claim. Hence, petitioner’s claim was not an account within definition of the word.

In Words and Phrases, volume 1, First Series, page 639, it is said:

“The word “audit” means to examine and adjust.”

Page 640:

To audit is to examine an account, compare it with the vouchers, adjust the same, and to state the balance, by persons legally authorized for the purpose.

xxx; xxx; xxx

To audit an account is to examine and digest it, or examine and verify it, or examine and adjust it. In actual practice to audit an account is to see that the accountant is charged with everything with which he is justly chargeable, and that nothing is placed on the credit side of the account for which he is not justly entitled to credit; and then, after the debit and credit are thus made up, to ascertain the balance remaining in his hands. (In re Heath’s Estate, 33 Atl., 46, 47; 52 N.J. Eq. [7 Dick.], 807.)

The language in paragraph (b), to “audit in accordance with the law and administrative regulations” means what it says. In other words, the “audit” should made as the law and the administrative regulations provide. That is to say, where the law itself has made the “audit,” or the administrative regulations have made the “audit,” the “audit” so made should be followed and approved.

Applying that rule in the instant case, the duties of the Insular Auditor were confined and limited to:

1. Ascertain that the protested claim has in fact been made;

2. That the protest was made within due tie;

3. That no appeal has been taken from the decision and that it is, therefore, final;

4. That the amount for which the warrant is drawn corresponds to the amount paid under protest;

5. That there is money available in the treasury with which to meet the payment;

6. That the claim is one for refund of duties on repairs made abroad.

Again, the original statute, requiring proof satisfactory to the Collector of Customs that adequate facilities for repairs to vessels are not afforded in the Philippine Islands, is found in the Philippine Tariff Law of 1909, and in accord with the repeated decisions of this court, the provision in question was included in, and is a part of, the organic law of the Philippine Islands. The subsequent amendatory law, Act No. 2872 of the Philippine Legislature, was enacted by the Legislature November 24, 1919, pursuant to the authority granted it by section 10 of the Jones Law, three years after the Jones Law was enacted. This amendatory Act, since it related to the tariff, required the approval of the President of the United States, and was given such approval by proclamation dated December 11, 1919. The provisions of the Administrative Code of 1917, containing provisions of the Administrative Code of 1916, which the Jones Law continued in force and effect, were approved by the President on October 1, 1917. Hence, it must follow that all of the legal provisions relating to the power of the Collector of Customs are found either in laws having their origin in organic law, or which partake of the nature of organic law.

The provisions of law which confer specific powers on the Insular Auditor are found either in the Jones Law, the Act of Congress of August 29, 1916, or in the Administrative Code. As just noted, these late provisions were approved by the President. So that, as to this particular transaction, the power of the Collector of Customs, like the power of the Insular Auditor, is grounded in the organic law of the Philippines.

The case of Concepcion vs. Paredes (42 Phil., 599), was decided by this court on December 23, 1921 and it was there held:

1. CONSTITUTIONAL LAW; GOVERNMENT OF THE PHILIPPINE ISLANDS; THE PHILIPPINE CONSTITUTIONAL. ? The various Acts of the Congress of the United States which have been formally and expressly extended to the Philippines, especially the Act of Congress of August 29, 1916, and the Acts of the Philippine Commission and Legislature which United States statutes have changed to organic laws, constitute the major portion of the so-called Constitution of the Philippine Islands.

2. ID.; ID.; ID. ? It is beyond the power of any branch of the Government of the Philippine Islands to exercise its functions in any other way than that prescribed by the organic law or by local laws which conforms to the organic law.

3. ID.; ID.; ID.; POWER OF PHILIPPINE LEGISLATURE. ? An Act of the Philippine Legislature which has not been expressly disapproved by Congress is valid unless the subject-matter has been covered by Congressional legislation, or its enactment forbidden by some provision of the organic Law. The Philippine Legislature is granted by the Organic Act, the Act of Congress of August 29, 1916, general legislative power subject to specific restrictions.

The opinion in that case was signed and approved by six members of this court, and one member concurred in the result only, and two others reserved their votes.

What is known as the Philippine Tariff Act of 1909 is an Act of Congress, and as to the matters therein contained, it has the same legal force and effect as the Jones Law itself. The amendment to that Act, which was made by the Legislature of the Philippine Islands in 1919, was made in the manner and form provided by the Jones Law, and was approved by the President of the United States, and hence it is now a valid law. It follows that the law as to vessels and water crafts should not be confined or limited to the Jones Law, but should include the original Philippine Tariff Act of 1909, and the amendment to it of 1919, and the provisions of the Administrative Code above quoted. For such reasons, all of such Acts should be combined and construed as one as to the law of vessels and water crafts on all questions relating to the Philippine Tariff Act.

In other words, the duties of the Insular Auditor were confined and limited to an investigation of the primary and fundamental facts as to whether a protest, was duly filed and a hearing was duly had upon the protest, and that the Collector of Customs had ordered the refund of the money in question, and whether there had been a compliance with all of the legal formalities concerning the protest.

By an examination of the pleadings, it will be found that all of such questions are admitted by the defendant in his answer.

In Hoey vs. Baldwin (1 Phil., 551), the complaint alleged that proper certificates showing that the petitioner was entitled to received his salary had been filed with the defendant. It was there held that:

The only duty which the defendant had to perform in this case was to pay the money to the plaintiff. This was a duty purely ministerial, “which the law specially enjoins as a duty resulting from” his office.

The defendant cites and relies on the case of Lamb vs. Phipps (22 Phil., 456). But that case was one in which the Auditor was clearly authorized and empowered to exercise discretionary and quasi-judicial power. It involved an examination and settlement of an account, the balancing of items of debit and credit to ascertain if a balance was or was not due from Lamb to the Government, and no other Government official was empowered to settle and decide those questions.

There is a marked difference between that and the instant case on both the law and the facts. But the case of Lamb vs. Phipps, supra, holds:

Auditors and comptrollers, as accounting officers, are generally regarded as quasi-official officers. They perform mere ministerial duties only in cases where the sum due is conclusively fixed by law or pursuant to law. Except in such cases, the action of the accounting officers upon claims … is not ministerial merely but judicial and discretionary. . . .

On principle, the case of Zobel vs. City of Manila (p. 169, ante), is in point. There the court held:

Another reason advanced for supposing the contract for the purchase of this property to the invalid, or at least unenforcible, is that the Insular Auditor has refused to countersign the warrant for the first installment of the purchase price; and it is insisted for the defendant that this action on his part is conclusive against the plaintiffs. Their sole recourse, so it is claimed, is, or rather was, by way of administrative appeal from the action of the Auditor of the Governor-General. The suggestion is in our opinion without merit. The general provisions of law defining the jurisdiction and powers of the Auditor and which, if literally construed, would seem to make him absolute arbiter of all claims of any sort against all branches of the Government must be considered to be qualified as regards the contract rights of persons dealing with the city by the more specific provisions declaring how and by whom contracts can be made which will be binding on it. It was not intended that the Auditor should possess a general veto power over all city contracts, and his refusal to countersign the warrant referred to is of no moment in this action to enforce the legal liability of the city.

The defendant vigorously contends that mandamus will not lie. As stated, petitioner’s protest was sustained by the Collector of Customs, who rendered a decision ordering the refund of the money, and that decision is now final.

In this case of Compañia General de Tabacos vs. French and Unson (39 Phil., 34), the opinion, on page 58, says:

. . . . The failure to appeal from the Auditor’s decision does not affect petitioner’s right of redress in the courts.

xxx; xxx; xxx

In considering the case before us, it is important to bear in mind that the Government is admittedly indebted to the petitioner in the definite and certain sum of P322.93.

No action, either administrative or judicial, is therefore necessary to fix this liability upon the Government. In so far as legal liability can result from governmental activities, liability exists and upon the demurrer is admitted. Furthermore, said liability is such that it should be absolved by a warrant drawn by the Purchasing Agent and countersigned by the Insular Auditor. The law makes provision for the payment of the money in this way, and it cannot otherwise be gotten out of the Insular Treasury.

The legal remedy here indicated as proper is the writ of mandamus to compel the Purchasing Agent and the Insular Auditor to issue, countersigned, and deliver the proper warrant to the petitioner. (Hoey vs. Baldwin, 1 Phil., 551.)

The liability of these officers to the coercive process of mandamus arises from the fact that valid claim exists for the payment of which provision has been made, that these officers are the appointed agents for making the payment, and that under these circumstances the execution and delivery to the creditor of the warrant are merely ministerial functions involving no discretionary action whatever.

On legal principle, the case of Work vs. United States ex rel. McAlester-Edwards Coal Company, decided by the Supreme Court of the United States on May 21, 1923, and reported in 67 Law ed., 949, is squarely in point. The opinion was written by the Chief Justice Taft, and it is there said:

“Every statute to some extent requires construction by the public officer whose duties be defined therein. Such officer must read the law, and he must, therefore, in a certain sense, construe it, in order to form a judgment from its language what duty he is directed by the statute to perform. But that does not necessarily and in all cases make the duty of the officer anything other than a purely ministerial one. If the law directs him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, them that act is ministerial, although depending upon a statute which requires, in some degree, a construction of its language by the officer.” (See also Work vs. United States, decided March 19, 1923; 261 U.S., 352, ante, 693; 43 Sup. Ct. Rep., 389).

Upon the admitted facts, the law fixes the liability, and defendant’s duties in the countersigning of the warrant are purely ministerial.

It is argued with much force that the petitioner has a complete, speedy and adequate remedy at law in an appeal from the action of the Insular Auditor for the Governor-General under the provisions of sections 653 and 656 of the Administrative Code.

That question was squarely met and decided by this Court in the case of Compañia General de Tabacos vs. French and Unson, supra where it was held:

. . . It results that the proceedings under sections 653 to 656, inclusive, of the Administrative Code (1917) are at no stage binding upon the courts, whether an administrative appeal is taken or not. The circumstance that no appeal to the Governor-General was taken by the petitioner in the instant case is, therefore, immaterial so far as the judicial solution of the controversy is concerned. … The failure to appeal from the Auditor’s decision does not affect petitioner’s right of redress in the courts.

Although that opinion was written by Justice Fisher, who was then a member of this court, and who is now counsel for the petitioner, it is worthy of note that it was unqualifiedly signed by every member of the court. That decision was rendered November 8, 1918, has never been overruled, has become and is now stare decisis.

Words and Phrases, volume 1, First Series, page 182, says:

The term “adequate remedy at law” means a remedy which is plain and complete, and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. (Keplinger vs. Woolsey [Neb.], 93 N.W., 1008, 1009.)

The rule that equity will not grant extraordinary relief as specific performance, mandamus, and the like, where there is an “adequate remedy at law,” means a specific, adequate legal remedy competent to afford relief on the very subject-matter made the foundation of the prayer for equitable relief. An applicant for mandamus to require a public officer to perform a duty imposed on him by law has not an “adequate remedy at law,” unless such legal remedy will require the officer to perform in effect the specific act which the law requires him to do. (Babcock vs. Goodrich, 47 Cal., 488, 508.)

An “adequate remedy” which will prevent the issue of a writ of certiorari is a remedy which is equally beneficial, speedy and sufficient; not merely a remedy which at some time in the future will bring a revival of the judgment of the lower court complied of in the certiorari proceedings, but a remedy which will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the inferior court or tribunal. (State vs. Guinotte, 57 S.W., 281, 286; 156 Mo., 513; 50 L.R.A., 787.)

The defendant forcibly contends that in the instant case his power and duties are specified and defined under the following provisions of the Jones Law:

The administrative jurisdiction of the Auditor over accounts, whether of funds or property, and all vouchers and records pertaining thereto, shall be exclusive.

The decisions of the Auditor shall be final and conclusive upon the Executive Branches of the Government, except that appeal therefrom may be taken by the party aggrieved or the Head of the Department concerned within one year, in the manner hereinafter prescribed.

In the execution of their duties the Auditor and the Deputy Auditor are authorized to summon witnesses, administer oaths, and to take evidence, and, in the pursuance of these provisions, may issue subpoenas and enforce the attendance of witness, as now provided by law. (Sec. 24, Philippine Autonomy Act.)

That any person aggrieved by the action or decision of the Auditor in the settlement of his account or claim may, within one year, take an appeal in writing to the Governor-General, which appeal shall specifically set forth the particular action of the Auditor to which exception is taken, with the reason and authorities relied on for reversing such decision. (Sec. 25, Philippine Autonomy Act.)

That, under such provisions, petitioner’s remedy was by an appeal to the Governor-General, or, as therein provided, to the Secretary of War.

It will be noted that the section above quoted do not specify that such an appeal shall be an exclusive remedy. It will also be noted that “the decisions of the Auditor shall be final and conclusive upon the Executive Branches of the Government.” It is fundamental that all governmental power is vested in the executive, legislative and judicial branches of the government, and the powers and duties of each branch are separate and distinct and clearly defined, and this law specifically says that the decisions of the Auditor shall be final and conclusive upon the “Executive Branches of the Government.” It does not say that his decisions shall be final and conclusive upon either the legislature of judiciary. The reason is very apparent. If the law had intended that the Auditor’s decisions should also be binding upon the legislative and judicial branches, it would have said so. The fact that it says that his decisions shall be final and conclusive upon the “Executive Branches of the Government” is conclusive that in the instant case it was never the intent of the law that his decisions should be final and conclusive upon the courts. Again, with all due respect to the Governor-General and the Secretary of War, it was never intended that either of them should exercise judicial functions or decide judicial questions of a civil nature. If the law did so provide, it might well be contended that it would be void and unconstitutional. The law having defined and limited the finality and conclusiveness of the decisions of the Auditor to and upon the “Executive Branches of the Government” only, it must follow that the appeal for which section 25 provides is an appeal from a decision of the Insular Auditor which would be final and conclusive upon the “Executive Branches of the Government” only, and that it was never intended that the provisions for such an appeal should apply to questions which are purely judicial.

It is very evident that when Congress enacted the law, it knew and understood the clear distinction between the powers and duties of the executive and judicial departments of the Government. As to their legal meaning, the words “person” and “appeal,” as used in section 25 of the Jones Law above quoted, should be construed in connection with, and as they relate to, section 24, supra. Both sections are portions of one and the same Act.

It should be distinctly understood that what we have said in this opinion should be confined and limited to questions relating to vessels and water crafts arising under the provisions of the Philippine Tariff Act.

We have carefully read all of the evidence which was submitted to the Collector of Customs at the hearing on the protest. It is conclusive that the petitioner has a just and meritorious claim.

All the persons, who were called as witnesses on behalf of the protest, were either representatives of firms or companies in the Philippine Islands that are engaged in the overhauling and repair of vessels, or who are skilled in that line of work, and who would have done the work that was done on the Venus, if it could have been done in the Philippine Islands, and all of them testified that, for want of proper equipment and facilities, it could not be done here.

To show that mandamus will not lie, the answer alleges that the money so paid under protest has since been converted into the Government’s treasury, and hence is now beyond the reach of the courts. There is no merit in that contention, and it was not relied upon in the argument. The answer also alleges:

To meet refunds of customs duties or taxes erroneously and illegally collected by the Philippine Government, permanent annual appropriations are provided by Act No. 357, as amended by Act No. 1515.

This provision is in the nature of a permanent and continuous appropriation for the payment of claims like the one in question.

The question presented is purely one of law which involves only the legal construction of Act of Congress and of the Philippines Legislature.

One of the attorneys for the petitioner has vigorously criticized and impugned the motives of the defendant. Suffice it to say that the criticism is not an element of strength in or of petitioner’s brief on the merits, and that the record is conclusive that, in refusing to countersign the warrant, the defendant was acting in good faith.

For the reasons above stated, we are clearly of the opinion that the petitioner is entitled to the writ as prayed for in its petition, and it is so ordered. Neither party to recover costs.

Avanceña, C.J., Street, Malcolm, Villamor, and Romualdez, JJ., concur.
Villa-Real, J., took no part in the consideration of this decision.

Separate Opinions

JOHNSON, J., dissenting:

PRELIMINARY STATEMENT

This is an original action in the Supreme Court and is, in fact, an action against the state to compel it to pay an alleged indebtedness by means of a writ of mandamus. The Collector of Customs first decide that certain merchandise was subject to an import duty under the provisions of section 8, subparagraph 200, of the Act of Congress of August 5, 1909, as amended by Act No. 2872 of the Philippine Legislature, and collected, as duty thereon, the sum of P159,960. Later he decided that the merchandise should have been admitted free of duty, under section 11, subparagraph 348, of said Act of Congress, and issued a warrant for the repayment of said sum to the petitioner. The warrant was presented to the Auditor for his countersignature in order to obtain the payment of said sum (P159,960) out of the public treasury.

The Auditor made some investigation in the premises, and as a result had some doubt concerning the admissibility of said merchandise into the Philippine Islands free of duty, whereupon he requested the Collector of Customs to make a further investigation concerning the admission of said merchandise free of duty. To that request the Collector of Customs made no reply. The petitioner demanded the payment of his claim against the state. It is claim against the state for the reason that it is paid out of the public funds of the state. This court has ordered that the writ of mandamus issue to compel the Auditor to authorize the payment of said alleged indebtedness in the face of the admitted facts that no such indebtedness is due and payable. In other words, this court has substituted its judgment for that of the Auditor. Thus, one of the longest established rules of the fiscal system of the Government of the United State that, “no effectual check can ever exist in any case of accounting where the same officer authorizes the expenditure and then audits it, or controls the audits of the accounts,” is violated. The fiscal system of accounting, under the laws of the Philippine Islands; does not permit an officer of the Government to create, in controversial questions, an indebtedness on the part of the Government and then order its payment without the consent of the officer (the Auditor) duly authorized to its first pass upon such claim or debt.

STATEMENT OF FACTS

I regret that I cannot agree with my associates in their conclusions in the present case. So long as judges disagree on question of fact there will continue to be disagreements on questions of law.

The facts here make it necessary to discuss and interpret and define the meaning, force and application of an Act of Congress of August 29, 1916 (39 U.S. Statutes at Large, 553). The particular sections involved are sections 24 and 25. A question of law only is presented. The facts are admitted by demurrer.

In order to have a clear conception of the question of law involved, it is necessary to know and fully understand just what the facts are. In this case they are:

First. All the facts alleged in the petition and not denied by the answer;

Second. All the facts alleged in the answer.

The facts alleged in the petition and admitted to be true by the answer are:

(a) That the petitioner is a regular collective commercial partnership, duly organized, registered and existing under the laws of the Philippine Islands, and having its principal office in the City of Manila;

(b) That the respondent is the duly appointed, qualified and acting Auditor for the Philippine Islands;

(c) That Mr. Vicente Aldanese is the duly appointed, qualified and acting Insular Collector of Customs of the Philippine Islands;

(d) That the petitioner is the agent and operator of the steamship Venus, a steam vessel engaged in the coastwise trade of the Philippine Islands;

(e) That the Insular Collector of Customs assessed customs duties in the amount of P159,960 upon repairs and construction work made upon the steamship Venus in a foreign port, and made demand upon the petitioner for the payment of said sum;

(f) That the petitioner paid to the said Vicente Aldanese the sum so demanded, under protest;

(g) That said protest was based upon the ground that said repairs and construction work were exempt from the payment of customs duty.

All of the other facts alleged in the petition were expressly denied by the respondent.

The facts alleged in the answer and admitted by the demurrer to be true are:

(a) That the said steamship Venus is a vessel documented for the Philippine coastwise trade, with a gross and net tonnage of 987.64 and 597.64, respectively;

(b) That prior to February 8, 1924, said vessel needed repairs; that notwithstanding the existence and availability of adequate facilities therefor in the Philippine Islands, the petitioner caused said repairs to be done at Hongkong at a cost of $300,004, Hongkong currency;

(c) That upon the arrival of said steamship in Philippine waters on or about the 20th day of October, 1924, the Insular Collector of Customs at Manila assessed and collected customs duty on said repairs in the sum of P159,960; that the petitioner paid said duties under protest;

(d) That on October 31, 1924, the Collector of Customs rendered a decision upon said protest, and ordered a refund of the amount collected to the petitioner; that on October 31, 1924, the respondent received a copy of the said decision of the Insular Collector of Customs on said protest;

(e) That the sum of P159,960, which had been collected by the Insular Collector of the Customs, as duty upon said repairs, had been received by the Insular Collector and had been deposited in the Insular Treasury of the Philippine Government and had become a part of the general unappropriated funds of said Government, in accordance with section 14 of Act No. 2935; that Act No. 357, as amended by Act No. 1515, provided for refunds of customs duties erroneously and illegally collected by the Philippine Government; that the duty and responsibility to examine, audit and settle and revise all accounts and claims for refund of customs duty rest solely and exclusively with the respondent Insular Auditor;

(f) That immediately upon receipt of the decision of the Insular Collector of Customs on said protest sustaining the same, the respondent, in pursuance of the powers and duties entrusted to him by law, made or caused to be made inquiries and investigations for the purpose of ascertaining and verifying the correctness and veracity of the assertions, that the repairs made on the steamship Venus at Hongkong could not have been made and executed in the Philippine Islands, to enable him to determine whether the refund ordered by the Insular Collector of Customs, or the payment for the credit so claimed, was actually made for objects or purposes authorized by Act No. 357 as amended by Act No. 1515, and for the accomplishment of which the particular appropriation in said Act is available;

(g) That on November 6, 1924, the respondent, being convinced, after said investigation, that adequate facilities for the repairs made on the steamship Venus are afforded in the Philippine Islands, and conscious of the duties and responsibilities entrusted to him by the Jones Law, sent a letter to the Insular Collector of Customs, requesting reconsideration of his decision on said protest, on the ground that it is openly and manifestly contrary to the weight of the evidence and to the provisions of paragraph 200, section 8, and paragraph 348, section 11, of the Philippine Tariff Act of 1909, as considered and applied by the Supreme Court in the case of Gutierrez Hermanos vs. Collector of Customs (39 Phil., 876);

(h) That later, the respondent addressed another letter to the Insular Collector of Customs, furnishing him with additional written proofs demonstrating the incorrectness of his findings on said protest, and at the same time requested him (the Collector) to again review said decision in the light of the newly found evidence, with the idea of assessing and collecting duties on the repairs and construction work done on said steamship Venus that could have been executed in the Philippine Islands;

(i) That no reply was received from the Insular Collector of Customs to the various requests of the respondent herein; that on the 26th day of November, 1924, the Insular Collector of Customs presented to the respondent, for countersignature, a warrant in favor of the petitioner for the sum of P159,960, said warrant being for the refund of the import duty so collected;

(j) That on November 28, 1924, the respondent returned to the Insular Collector of Customs said warrant and informed him that no action thereon could be taken until after the request of the respondent for the reconsideration of the decision of said Insular Collector of Customs had been passed upon by him;

(k) That on the same day (November 28) the said Insular Collector of Customs returned the respondent’s request for reconsideration of his decision on said protest;

(l) That at the time the petition in the present cause was filed the respondent had not yet finally decided whether or not he would approve and countersign said warrant for the sum of P159,960, drawn in favor of the petitioner.

It may be added that the respondent contends that the Supreme Court is without jurisdiction to consider the questions presented, for the reason that the petitioner has another plain, speedy and adequate remedy in the ordinary course of law, without resorting to the remedy prayed for, which other plain and adequate remedy is by an appeal to the Governor-General and then to the Secretary of War.

It would be unnecessary to add, under the demurrer, that no facts alleged in the complaint and denied by the answer can be considered now.

Attached to the memorandum presented by the respondent there are many exhibits. Objection is made by the petitioner to the consideration of said exhibits because they were inadmissible under the issue presented. We agree with the petitioner that they should not be considered, and they have not been, in our consideration of the question presented.

FIRST QUESTION

Under the foregoing admitted facts the first question to be considered is whether or not the merchandise, in value amounting to more than 300,000 Hongkong dollars, which were placed in the steamship Venus at Hongkong in order to repair it, is admissible into the Philippine Islands free of duty. The Insular Collector of Customs decided first that said merchandise was not admissible free of duty, and later decided that it was.

Prior to the Act of Congress of August 5, 1909 (39 U.S. Statutes at Large, 553; vol. 7, Public Laws of the P.I. 367), steamships or ships operating in the coastwise trade of the Philippine Islands, when they needed repairs such as boilers, engines, etc., etc., might go to Hongkong or to some other port where labor and material were cheaper and have such merchandise placed in them and bring the same into the Philippine Islands without the payments of an import duty. That practice worked a great injustice not only to the ship builders in the Philippine islands, and repair docks, but to the Government itself, in that such merchandise was brought in without payment of duties. In other words, prior to the said Act, if a citizen of the Philippine Islands desired to construct a ship here we was obliged to bring in boilers, engines, iron, etc., for that purpose, and upon which he was obliged to pay an import duty.

Realizing the injustice which then existed, the Congress of the United States provided a revenue or adopted an “Act to raise revenue for the Philippine Islands.” In section 11 (subparagraph 348) of that Act, a provision was made for the admission of certain merchandise into the Philippine Islands, free of duty, when the conditions therein were complied with. Said section 11 provided, in eight different subparagraphs, for the admission of merchandise into the Philippine Islands free of duty. Among the other merchandise so admitted there were included “repairs to vessels documented in the Philippine Islands or regularly plying in the Philippine waters, made in foreign countries, upon proof satisfactory to the Collector of Customs that adequate facilities for such repairs are not afforded in the Philippine Islands” (subparagraph No. 348). A very similar provision to that just quoted is found in section 8, subparagraph 200, of said Act of Congress, which also provides: “boats, launches, lighters and other water craft set up or knocked down, imported into the Philippine Islands, and cost of repairs made in foreign countries to vessels or to parts thereof, documented for the Philippine coastwise trade or plying exclusively in Philippine waters and for which repairs adequate facilities are afforded in the Philippine Islands, fifty per centum ad valorem” shall be collected. Said subparagraph 200 contains a number of provisos. The first is, “that upon proof satisfactory to the Collector of Customs that adequate facilities are not afforded in the Philippine Islands for such repairs, the same shall be subject to the provisions of paragraph three hundred forty-eight of this Act.”

This proviso was amended by an Act (No. 2872) of the Philippine Legislature of November 24, 1919, and approved by the President of the United States and put in force in the Philippine Islands by a proclamation of the Governor-General of the 11th day of December, 1919. The said amendment makes said proviso read as follows: “That upon proof satisfactory to the collector of customs that adequate facilities are not afforded in the Philippine Islands for such repairs, so that the work cannot be done there reasonably, economically and within a reasonable time, in the judgment of said collector, such repairs shall be subject to the provisions of paragraph three hundred forty-eight of this Act.” (Act of August 5, 1909.)

Under said amendment it will be noted that repairs to coastwise vessels may be made in foreign countries even though facilities for the making of such repairs existed In the Philippine Islands, if in the judgment of the Collector of Customs the same repairs could not have been made in the Philippine Islands “reasonably, economically and within a reasonable time.” There is nothing in the admitted facts, nor even a suggestion, that the repairs in question could not have been made in the Philippine Islands “reasonably, economically and within a reasonable time,” while it does appear in the admitted facts, that there existed in the Philippine Islands “adequate facilities” for making such repairs. In view of the admitted facts and in the absence of an allegation “that the work (repairs) could not have been done reasonably, economically and within a reasonable time” in the Philippine Islands, upon what theory was the merchandise in question, amounting to more than 300,000 Hongkong dollars, admitted free of duty? It is evident, under the admitted facts, that the merchandise is not admissible free of duty.

SECOND QUESTION

As a second question, it may be inquired: May the Auditor of the Philippine Islands ever intervene in the settlement of accounts of the Collector of Customs, for the purpose of ascertaining and deciding whether or not a mistake was made in imposing a duty upon an imported merchandise when none should have been imposed, or in admitting free of duty such merchandise when a duty should have been collected? If the Auditor is vested with authority to inquire into the legality of the collections of the Collector of Customs, then such collections cannot be final and conclusive.

May the Collector of Customs to-day collect an import duty on merchandise, turn the collections into the public Treasury of the Government, and then tomorrow decide that the collection was erroneously made, and render a final decision ordering that the same be paid out of the Treasury, without satisfying the Auditor that the collection was, in fact, erroneously made? May the Collector himself thus create a demand or claim against the Government which the Auditor cannot question? If so, then the same officer may create a claim against the Government and at the same time audit it. Can that be done in the face of the provisions of section 1 of Act No. 3066, which provides that “the authority and powers of the Bureau of Audits extend to and comprehend all matters relating to accounting procedure, including the keeping of the accounts of the Government, the preservation of vouchers, the methods of accounting, the examination and inspection of the books, records, and papers relating to such accounts, and to the audit and settlement of the accounts of all persons respecting funds or property received or held by them in an accountable capacity, as well as to the examination and audit of all debts and claims of any sort due from owing to the Government of the Philippine Islands in any of its branches”?

I maintain that, both under the Act of Congress and the statutory laws of the Philippine Legislature, the Auditor has jurisdiction over the collection of customs duties as well as over their refund, and give the following provisions of the Act of Congress and the statutory laws of the Philippine Legislature in support of that contention:

(a) Section 24 of the Act of Congress of August 29, 1916, confers upon the Insular Auditor of the Philippine Islands the following powers:

1. The Auditor shall examine, audit, and settle all accounts pertaining to the revenues and receipts from whatever source of the Philippine Government.

2. He shall audit, in accordance with law and administrative regulations, all expenditures of funds pertaining to the Government.

3. The administrative jurisdiction of the Auditor over accounts, whether of funds or property, and of vouchers and records pertaining thereto, shall be exclusive.

4. The Auditor is authorized to communicate directly with any person having claims before him for settlement.

5. In the execution of their duties the Auditor and deputy auditor are authorized to summon witnesses, administer oaths, and to take evidence, and, in the pursuance of these provisions, may issue subpoenas and enforce the attendance of witnesses, as now provided by law.

6. The Auditor shall, except as hereinafter provided, have like authority as that conferred by law upon the several auditors of the United States and the Comptroller of the United States Treasury.

(b) The very last word of the Philippine Legislature upon the question of the authority of the Auditor relating to the auditing of accounts by section 1 of Act No. 3066, provided:

1. For the general jurisdiction, authority and power of the Auditor; and

2. That such jurisdiction, authority and power shall extend to and comprehend all matters relating to accounting procedure, etc., etc., as well as to the examination and audit of all debts and claims of any sort due from or owing to the Government of the Philippine Islands in any of its branches.

It would be difficult, if not impossible, in a statutory provision to use words in the English language which would more definitely and conclusively confer jurisdiction upon the Insular Auditor over the claim which the petitioner now presents for allowance. The voucher prepared by the Collector of Customs and presented for countersignature by the petitioner in the present case unquestionably represents a debt or claim against the Government thereof. Both the Act of Congress and the Act of the Philippine Legislature expressly provide that the Auditor shall examine, audit all debts and claims of any sort due from or owing to the Government of the Philippine Islands in any of its branches. No one will deny that the department of customs is one of the branches of the Philippine Government.

It is the theory of the majority opinion that the decision of the Collector of Customs is final and that the Auditor has no jurisdiction, right or authority to question his decision. In support of that contention there is cited Act No. 2872, which amends subparagraph 200 of section 8 of the Act of Congress of August 5, 1909. (Vol. 7, Public Laws, P.I.) Said subparagraph 200 of the Act of Congress of August 5, 1909, in relation with subparagraph 348 of the same Act, provided for the admission into the Philippine Islands, free of duty, of merchandise used in making repairs in a foreign port on vessels documented for the Philippine coastwise trade. Said merchandise were to be admitted free of duty if “upon proof satisfactory to the Collector of Customs that adequate facilities are not afforded in the Philippine Islands for such repairs” the same shall be admitted free of duty under the provisions of subparagraph 348. (Subparagraph 200, proviso 1, and subparagraph 348 of Act of Congress of August 5, 1909.)

Act No. 2872 of the Philippine Legislature and approved by the President of the United States amended said subparagraph 200 of the Act of Congress of August 5, 1909, so that the first proviso read as follows: “That upon proof satisfactory to the Collector of Customs that adequate facilities are not afforded in the Philippine Islands for such repairs, so that work cannot be done there reasonably, economically and within a reasonable time, in the judgment of said Collector, such repairs shall be subject to the provisions of paragraph three hundred forty-eight” of the Act of Congress of August 5, 1909. The majority opinion contends that said Act gives the Collector authority to finally decide the question whether or not said merchandise, in the way of repairs, may be admitted free of duty, and having decided, his decision cannot be questioned, unless, in accordance with the provisions of sections 1383, 1384, and 1386 of the Administrative Code (Act No. 2711) the question is removed into the Court of First Instance. Section 1383 provides that the party aggrieved by the decision of the Insular Collector of Customs … may procure the cause to be removed for review into the Court of First Instance. Said section further provides that, “unless the proper party (aggrieved party) shall procure the cause to be thus removed into court for review, the action or decision of the Insular Collector shall be final and conclusive against him” (the party aggrieved). Clearly, under said section the petitioner could not “procure the cause to be removed into the Court of First Instance” for the reason that he is not aggrieved at the decision of the Collector of Customs. His complaint is that he is aggrieved at the decision of the Auditor.

Said section 1384 provides as to who may procure the cause to be removed for review in the Court of First Instance. It provides that “the removal of a cause into court may be had at the instance of the protesting party, etc.” If the decision of the Insular Collector is adverse to the Government the cause may be removed in the manner hereinafter specified, by order of the department head. It will be noted that under the provisions of section 1384 the cause may be removed for review in the Court of First Instance by order of the department head. In the present case the department head (Secretary of Finance) failed and refused to remove the present cause for review in the Court of First Instance even though requested so to do.

Said section 1386 provides what shall be done in perfecting the removal for review in the Court of First Instance when the department head so orders. The department head in the present case, not having ordered the removal, then certainly said section (1386) can have no important bearing upon the issues presented not upon the finality of the decision of the Collector of Customs.

Referring again to the provisions of said Act No. 2872 and to that provision “that upon proof satisfactory to the Collector of Customs, etc.,” we desire to state that, that provision adds nothing to the power and authority of the Collector of Customs. Every piece of dutiable merchandise imported to the Philippine Islands is admitted upon the payment of any or without duty “upon proof satisfactory to the Collector of Customs.” The Collector of Customs is the sole judge in the first instance upon the question whether or not merchandise shall be admitted free of duty, and of course it must follow that said admission is “upon proof satisfactory” to him. We find no justification in the provisions of said Act No. 2872 nor in said sections 1383, 1384, and 1386 of the Administrative Code for the contention that the decision of the Collector of Customs is final against the Auditor in the present case, any more than in any other case where dispute arises concerning the admission of merchandise into the Philippine Islands with or without duty. The reports of the Supreme Court of the Philippine Islands contain many cases reversing the decision of the Collector of Customs when the duty was paid under protest and upon the ground that the merchandise should have been admitted free of duty.

It will also be noted that none of said provisions of the law make any reference whether to the jurisdiction and authority of the Auditor. In the present case the Collector of Customs created a claim against the Philippine Government by issuing the warrant in question. The warrant, if held to be valid and a binding obligation, becomes an obligation on the part of the Philippine Government to pay it. It is a debt, if valid, against the Government and, in our judgment, both the Act of Congress and the long chain of Act of the Philippine Legislature clearly support the authority and power of the Auditor to audit and settle “the accounts of all persons respecting funds or property received or held by them in an accountable capacity, as well as to the examination and audit of all debts and claims of any sort due from or owing to the Government of the Philippine Islands in any of its branches.” (Act No. 3066 amending section 584 of Act No. 2711.)

Not only has the Auditor jurisdiction over the present matter as a claim against the Government, but it is clearly evident from both of the Act of Congress and the Act of the Philippine Legislature that he has jurisdiction from the point of view of determining whether the claim if just can be paid from funds of the Government in accordance with the terms of a specific appropriation. The claim of the petition is a claim against the Insular Government arising out of the receipt of revenues, and under the law the Auditor must determine whether the claim comes under the terms of a particular appropriation. The mere fact that a general standing appropriation of the public funds is made cannot be used for the purpose if liquidating particular claims until it is shown to the satisfaction of the Auditor that the particular claim falls under the general standing appropriation. There is only one exception to that rule and that is in the case where the Legislature specifically and unequivocally appropriates a certain amount of money for specific purpose.

Not only is the Auditor given “authority and power to audit all debts and claims of any sort due from or owing to the Government of the Philippine Islands in any of its branches” but under the provisions of the Act of Congress of August 29, 1916, he is given power to summon and enforce the attendance of witnesses, to administer oaths and to hear evidence upon all such claims. Under the law, in our judgment, the Auditor is not a mere machine to register the opinions and decisions of others. He is required to certify balances due. He is required to exercise his judgment. He is not justified in following the judgments of others. His action upon a particular claim presented is a decision, and that decision is by the law presumed to be made after an intelligent scrutiny of all of the facts relating to the claim itself and of the vouchers presented in support thereof. The Auditor is not only judge of the law but of the facts of the cases, and he would not be justified in accepting the views, opinions, findings or rulings of any other officer of the Government upon the claim or on the vouchers therewith submitted. His duties generally are discretionary in the highest degree. He is presumed to state the accounts according to the law and facts. For him to admit claims which in his judgment are incorrect would be not only a violation of the law but of his oath of office.

On whom did the Congress of the United States and the Philippine Legislature cast the burden of determining, for the Auditor, whether warranted coming before him for countersignature are not warranted, authorized or justified by law? If on no other than the Auditor himself, would the Legislature not have indicated, expressly or impliedly what officer? In the absence of such indication or of the slightest trace of a disposition or purpose to make the countersigning a mere ministerial attestation it would seem to be clearly beyond dispute that the legislative authority used in its obvious universal meaning the language in which it clarifies the Auditor’s duty to countersign warrants; that by the inevitable force of the language used in the various laws, the Auditor has the sole responsibility and jurisdiction to pass upon claims in favor of or against the Government. That being true, he must determine for himself as to the legality of claims presented. He must determine for himself as to such legality, whether his decision agrees or disagrees with the judgment of the persons who present the claim. In the performance of his official duty, the Auditor must exercise his own discretion and judgment; and such exercise is not an intervention of the discretion or a revision of the judgment lawfully exercised in relation to the same matter at a previous stage by any other authority in the Government. In deciding that a particular warrant which comes before him for countersignature is not warranted by law, and that he will therefore not countersign it, the Auditor does not assume to reverse or annul the prior action of any other officer in the Government. The Auditor simply exercises his own judgment in a matter concerning which the law has clothed him with a discretionary power or trust.

It is the duty of the Collector of Customs to construe and apply the customs laws, but it is the duty of the Auditor to see that in the collection of revenues and the expenditure of public funds of the Government, the law has been followed and that it has been properly interpreted.

We maintain that all the Acts of the Philippine Legislature, including the Act of Congress, commencing with the order of May 8, 1899, down through all of the Acts of the Philippine Legislature Nos. 90, 145, 215, 328, 355, 361, 456, 807, 864, 907, 1402, 1792, 2711, 3066, and the Act of Congress of August 29, 1916, fully support the doctrine that the Auditor of the Philippine Islands has jurisdiction and authority to audit and decide finally, unless there is an appeal in accordance with the provisions of the law, debts and claims of any sort due from or owing to the Government of the Philippine Islands in any of its branches.

It should be remembered that the 159,960, in question was turned into the Treasury and had become a part of the public funds of the Philippine Government. It is contended, however, that inasmuch as the Philippine Legislature (the United States Philippine Commission) provided a permanent annual appropriation “to refund moneys erroneously received and concerned into the Treasury, including all cases of amounts deposited by officers as revenue collected,” that the Collector of Customs may, on his own account and by his own authority, order the payment of any “moneys erroneously received and covered into the Treasury” without the consent of the Auditor (Act No. 357 as amended by Act No. 1515).

The petitioner insists that by virtue of said provisions of law the Auditor is under obligation to allow the payment of warrants like the one in question, without the exercise of any discretion whatever. The contention simply means that the Collector of Customs may finally decide, and without the possibility of having his decision questioned, that the “moneys erroneously received and covered into the Treasury,” should be repaid. In other words, under the contention of the petitioner, the Collector of Customs has full and final authority: (a) To decide that the moneys were erroneously received and covered into the Treasury; and (b) to order the payment of such moneys, without the right of the Auditor to inquire into the question whether or not the moneys were, in fact and under the law, erroneously received.

As has been argued in this dissent, under the law the Auditor must scrutinized carefully the precise terms of every appropriation before he can approve an expenditure under it. Especially is this true in the case of continuing annual appropriation of long standing, n which no definite amount is set up. Such an appropriation is exceedingly dangerous, and without continual watchfulness the Government could be quietly bled of a large share of its revenues. Without some competent and efficient check upon the Collector of Customs or other collectors of public revenue, it is conceivable, if payment are left to their individual discretion, that a large part of the duties collected might be refunded upon protest if this court establishes the precedent contended for in the present case, and the Government might thus be deprived of the funds absolutely necessary to continue its operations.

It will be noted by reference to Acts, that they only permit the refund of moneys erroneously received. Under the law, who is to decide the question whether or not the moneys were in fact erroneously received? In view of the provisions of the Acts of Congress and the Philippine Legislature, we are of the opinion that the Auditor must satisfy himself that the money in question, in the present case amounting to P159,960, was erroneously collected. That involves a careful investigation of the facts upon which he must base his decision. The forming of a decision, which it is his sworn duty to make, very obviously demands an exercise of discretion, for, there is not the slightest indication in the words of said Acts, that the Auditor is to be bound by the opinions or decisions by any person or official of the Government.

The money which the Collector of Customs is now attempting to get out of the public Treasury, based upon said permanent appropriation, is simply appropriated to meet the refund of moneys erroneously collected. If the Legislature intended that the Auditor should be bound by the decision of the Collector of Customs, it would have so stated in plain terms. In View of the facts that under the law in force in the Philippine Islands, no money can be paid out of the Treasury except by warrant and no such warrant is valid unless it is countersigned by the Auditor, it is plainly evident that, in the absence of anything in the law to the contrary, the Auditor is fully within his authority in refusing to countersign such warrant until and unless he has satisfied himself that the money in question was, in fact and actually, erroneously collected. “No effectual check can ever exist in any case where the same officer authorizes the expenditures and then audits, or controls the audit of the accounts.” (Lamb vs. Phipps, 22 Phil., 456, 479.)

The great Chief Justice Marshall, in the case of Marbury vs. Madison (1 Cranch [U.S.], 168), said:

We cannot issue the writ of mandamus in any case where the proper remedy is by appeal, merely because the appropriate remedy may involved an inconvenient delay.

Inasmuch as said standing appropriation can only be used in payment of “moneys erroneously collected,” and inasmuch as it is the duty of the Auditor to safeguard the public treasury and not allow funds to be paid out the same until he is satisfied that both under the facts and the law they should be paid, we are confident in our belief, that it is the bounded duty, under the law, for the Auditor to decide, in the final analysis, whether or not the moneys had been in fact erroneously collected.

THIRD QUESTION

The third question which presents itself under the admitted facts is whether or not the decision of the Insular Auditor, in refusing to countersign the warrant in question before he was informed fully concerning the causes which led the Collector of Customs to reverse his former decision, in which a duty was collected upon the merchandise in question, and decided that said merchandise should be admitted free of duty, was final until the same was reversed in accordance with the provisions of sections 24 and 25 of the Jones Law (Act of Congress, Aug. 29, 1916, 39 Statutes at Large, U.S., 553; Vol. 12, Public Laws of the Philippine Islands, 237).

One of the subdivisions of said section 24 provides that, “the decision of the Auditor shall be final and conclusive upon the Executive Branches of the Government, except that appeal therefrom may be taken by the party aggrieved or the Head of the Department concerned within one year, in the manner hereinafter prescribed. The Auditor shall, except as hereinafter provided, have like authority as that conferred by law upon the several auditors of the United States and the Comptroller of the United States Treasury and is authorized to communicate directly with any person having claims before him for settlement, or with any department officer or person having official relations with his office.” The provision with reference to the method and time of appeal is prescribed by section 25 of said Act. Said section (25) provides “that any person aggrieved by the action or decision of the Auditor in the settlement of his account or claim may, within one year, take an appeal in writing to the Governor-General, which appeal shall specifically set forth particular action of the Auditor to which exceptional is taken, with the reason and authorities relied on for reversing such decision.”

It will be noted from said quoted provisions that the decision of the Auditor shall be final and conclusive unless appeal therefrom in writing is taken by the party aggrieved or the head of the department concerned within one year to the Governor-General, etc. It is argued that, that provision making the decision of the Auditor final and conclusive does not apply to the courts, for the reason that the above quoted provision is, that the decision of the Auditor shall be final and conclusive upon the executive branches of the Government only. That argument is made, however, without taking into consideration that provision of the law which immediately follows and which is, “except that appeal therefrom may be taken by the party aggrieved, etc.,” which must be that the decision of the Auditor is final and conclusive upon the executive branches of the Government only when the person or head of the department aggrieved appeals within one year. It seems to us that a doctrine that a decision which is final and conclusive as to one department of the Government is not also final and conclusive as to every other department of the Government, cannot be given serious consideration on the part of a disinterested and conscientious court.

It is further argued that the decision of the Collector of Customs, ordering the return of the duties collected, was final and conclusive and therefore the Auditor was without authority or jurisdiction to even inquire into his decision. In support of that contention our attention is called to section 1383 of Act No. 2711 (Administrative Code). It will be noted upon reading said section that no such conclusion can be drawn therefrom. It is not even intimated that his decision is final and conclusive as to any one except the person making the protest. The law expressly provides that “the action or decision of the Insular Collector shall be final and conclusive against him” (the protestant) and then only final and conclusive unless the party shall procure the cause of the protest to be removed into court for review. In other words, said section simply provides that the decision of the Collector of Customs shall be final and conclusive against the protestant unless he appeals therefrom. There is no intimation in said section that the decision of the Insular Collector of Customs shall be final against the Auditor.

AUTHORITY OF THE AUDITOR OF THE PHILIPPINES ? A RESUME OF THE LEGISLATION OF THAT QUESTION

Considering, under the provisions of section 24 of the Act of Congress of August 29, 1916, that “the Auditor shall, except as hereinafter, have like authority as that conferred by law upon the several auditors of the United States and the Comptroller of the United States Treasury,” etc., and that “the decisions of the Auditor shall be final and conclusive,” etc., it becomes important for the decision of the question before us to ascertain:

First. What is the like authority conferred by law upon the auditors and the Comptroller of the United States Treasury; and,

Second. What are the particular powers and duties relating to the final and conclusive decisions of the Auditor of the Philippine Islands, as provided for by law.

FIRST. What are the powers and authority, and the finality and conclusiveness of the decisions of the Auditors and the Comptrollers of the United States Treasury?

Very early in the history of the Federal Government of the United States it became advisable to have accounting officers. For that purpose Congress provided for the settlement of accounts by Auditors and comptrollers of the Treasury. The Congress of the United States very early in its history discovered that “no effectual check can ever exist in any case (of accounting) where the same officer authorizes the expenditures and then audits it, or controls the audits of the accounts.” (See Senate Document No. 6, p. 5, of the Second Session of the 23d Congress of the United States.)

Congress very early provided that all controversial or questioned accounts should be passed upon by auditors or by the Comptrollers of the Treasury and that their decision should be final and conclusive. That has been the doctrine in the Federal Government of the United States for nearly one hundred years. Experience taught those who were responsible for the financial administrator of the Federal Government that mere paper balances are not always reliable; that the actual and property of the Government are not always visible in such balances. The question which we are now discussing is not a new one. As early as the administration of Presidents Monroe, Adams, Jackson and Polk, we find that the same question was up for decision. During the administration of President Monroe and President Adams the doctrine, so clearly and explicitly stated, appears to have been uniformly adhered to. President Jackson, who has not apt to shun responsibility that belonged to him, fully acknowledged his want of authority over the accounting officers in the settlement of claims. Messrs. Peebles and Gorham, contractors for supplies in the subsistence department of the United States army, being dissatisfied with the final adjustment of their account by the Comptroller, applied to President Jackson for relief, who referred the application to the Secretary of War, by whom, through the Commissary-General, a report was made July 1, 1835. The opinion of President Jackson, in his own original autograph, is found indorsed on the papers in the auditor’s office, as follows: “The report made ? attorney-general’s opinion ? referred to. The decision of the Comptroller is final, over whose decisions the President has no power, except by removal. The secretary of War will make known this decision to Mr. Peebles. A.J.”

Again, during President Polk’s administration an application was made to him to interfere with the adjustment of the same claim which he declined to do, making his indorsement on the papers as follows: “I have considered the application in the case to open the accounts of Bryant etc. Co., and decline to interfere upon the ground that Congress has expressly given the authority to settle claims to the accounting officers (Comptroller) of the Treasury Department, and that I have no right to control these officers in the performance of their duty. August 9, 1845, J. K. Polk.”

In the case of Decatur vs. Paulding ( [1840], 14 Peters, 497) Mr. Chief Justice Taney, speaking for the Court said:

Where a law imposed a duty which required the exercise of judgment and discretion the court had no right, by mandamus, to control his judgment, and guide him in the exercise of a discretion which the law had confided to him.

In the case of the United States vs. Arredondo (6 Peters [U.S], 689, 729) the Supreme Court of the United States said:

He (the Auditor or Comptroller) is required to certify balances due in favor of or against the Government. To certify is to make certain. To make a certificate is to exercise judgment and discretion. He is required to render decisions upon the legality of claims, and his conclusions are not mere opinions. In rendering decisions, judgment and discretion must necessarily be exercised. A decision is by the law presumed to be made after an intelligent scrutiny of all the facts has been made. In the discharge of his duty (Auditor or Comptroller’s) he is judge not only of the law but of the facts; and he would not be justified in accepting views, opinions, findings or rulings of any other officer of the Government upon the claims or vouchers admitted. In the performance of his duties, the Auditors is not subject to the jurisdiction of any officer of the executive branch of the Government nor to that of any court of the judicial branch. He is not a mere machine to register or blindly execute the opinions or acts of other officers in matters which pertain, by the laws of the fiscal system of the Government, by well defined public policy, and by long practice, to the jurisdiction of the accounting officer ? a jurisdiction which it is his duty to maintain even in cases in which its existence may be doubtful.

The legislative department of the Government would not have made the decision of the auditor final and conclusive, unless an appeal is taken therefrom, without intending to give to the auditor and comptroller an uncontrollable discretion in fully examining and scrutinizing every account presented against the Government. The power to certify a balance, for a like reason, includes the authority to review and decide all questions of law and fact, and to use all sources of information for that purpose. A settlement of an account and certificate of a balance, which cannot go to the sources of evidence and examine all questions of law and fact, would be practically no examination at all.

In the case of Longwill vs. United States (17 Court of Claims, 291) it was said:

The accounting officers of the Treasury are no doubt bound to scrutinize claims and accounts with great care, as is their custom, and it is the undoubted right of those who have the authority to decide thereon to reject in whole or in part, as their judgment dictates, all those claims which they have reasonable cause to suspect are tainted with fraud or in which they believe there may be substantial defect in law or as to the validity of which they are in doubt.

In the case of the Board of Liquidation vs. McComb (92 U.S., 541) the Supreme Court of the United States said:

. . . The objections to proceeding against state officers by mandamus or injunction are: First, that it is, in effect, proceeding against the state itself; and, second, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officer in matters belonging to the proper jurisdiction of the latter. … (Work vs. United States ex rel. Rives, decision of the Supreme Court of the United States, March 2, 1925, and cases cited, 69 Law ed.; Work vs. United States ex rel. Chestate, decided March 2, 1925, 69 Law. ed.)

For the courts to require an auditor or comptroller to allow or disallow a claim against or in favor of the Government, would be to substitute the courts as the auditing officer of the Government. Such a result was not contemplated by Congress when it conferred final and exclusive jurisdiction upon the auditing department of the Government (Kendall vs. U.S., 12 Peters, 524; Decatur vs. Paulding, 14 Peters, 497; Borough of Uniontown vs. Commonwealth of Pennsylvania ex rel. Veech, 34 Pa., 293.)

Under the statute of the United States the Auditor and Comptroller of the Treasury are, by statute authorized to examine accounts and to certify balances thereon. The exercise of that power necessarily involves the exercise of judicial discretion. Judicial action cannot be subject to any control or discretion except by law or by an appeal. The authority so given by statute should be exercised with that untrammeled independence of judgment which is essential to its proper exercise.

In the case of United States ex rel. Lisle vs. Lynch and Gilkeson (137 U.S., 280) a petition was presented to compel the Comptroller to pay the petitioner the sum of $288.60, being an amount remaining unpaid for travel expenses incurred under an Act of Congress. Upon the consideration of a demurrer to the petition the court said: “That mandamus will not lie against an officer of the Treasury Department for refusal to allow and pay a claim against the United States, for, however obviously without legal justification his refusal may be, a mandamus against him to compel such allowance and payment is none the less in effect a suit against the United States.” (Decatur vs. Paulding, [1840], 14 Peters, 497.)

In the case of United States ex rel. Riverside Oil Co. vs. Hitchcock (190 U.S., 317) Mr. Justice Peckham, speaking for the court and after citing and discussing the case of Decatur vs. Paulding, said:

That the decision of the questions presented to the Secretary of the Interior was no merely formal or ministerial act as shown beyond the necessity of argument by a perusal of the foregoing statement of the issues presented by this record for the decision of the Secretary. Whether he decided right or wrong, is not the question. Having jurisdiction to decide at all, he had necessarily jurisdiction, and it was his duty to decide as he thought the law was, and the courts have no power whatever under those circumstances to review his determination by mandamus . . .

In the case of Bates & Guild Co. vs. Payne (194 U.S., 106) Mr. Justice Brown, speaking for the Supreme Court, said:

. . . That where the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive … unless the law allows an appeal. (Lamb vs. Phipps, 22 Phil., 456.)

Dr. James L. High, one of the clearest American law writers, in his valuable work on “Extraordinary Legal Remedies” in section 102, after discussing the right of the courts to coerce the performance of purely ministerial duties, said:

Where, however, auditing officers intrusted by law with the duty of passing upon and determining the validity of claims against a state, are vested with powers of a discretionary nature as to the performance of their duties, a different rule from that above stated prevails. In such cases the fundamental principles denying relief by mandamus to control the exercise of official discretion applies, and the officers having exercised their judgment and decided adversely to a claimant, mandamus will not lie to control their decision or to compel them to audit and allow a rejected claim. The remedy, if any, for such a grievance must be sought at the hands of the legislature, and not of the courts. (Auditorial Board vs. Arles, 15 Tex., 72; Auditorial Board vs. Hendrick, 20 Tex., 60; Towle vs. State, 3 Fla., 202; State vs. Doyle, 38 Wis., 92; People vs. Auditor of Colorado, 2 Colo., 97; States vs. Oliver, 116 Mo., 188; Burton vs. Furman, 115 N.C., 166; Wailes vs. Smith, 76 Md., 469; State vs. Babcock, 22 Neb., 38; State vs. Boyd, 36 Neb., 60.) Especially will relief by mandamus be refused in such case when the party aggrieved has a plain and adequate remedy by appeal from the refusal of the auditing officer to allow his claim. And when a state comptroller is vested with certain discretionary powers in the adjusting and settlement of demands against the state, he cannot be compelled to issue his warrant for the payment of a particular sum. Nor will the writ go to compel an officer to audit a claim unless it is clearly his duty so to do. (Wailes vs. Smith, 76 Md., 469; Drew vs. Russel, 47 Vt., 250.)

Mr. Spelling, in his work on “jurisdictions and Other Extraordinary Remedies,” in a very learned and extensive discussion of the question now before us says that mandamus will not lie in any matter requiring the exercise of official judgment, or resting in the sound discretion of the person to whom a duty is confided by law, either to control the exercise of that discretion or to determine the decision which shall be finally given, but only to set him in motion and compel him to exercise his function according to some discretion when he has refused or neglected to act at all. (U.S., vs. Seaman, 17 How., 225; People vs. Fairchild, 67 N.Y., 334; State vs. Board of Liquidation, 29 La. Ann., 264; Freeman vs. Selectmen of New Haven, 34 Conn., 406; Rutter vs. State, 38 Ohio, 496; U.S. vs. Commissioner, 5 Wall., 563; People vs. Board of Commissioners of Cook Country, 176 III., 576; People vs. Maher, 141 N.Y., 330; Boyne vs. Ryan, 100 Cal., 265.) And of course, where another remedy exists, as under the express statutes of the Philippine Islands, mandamus will not be granted.

Mr. Merril, in his work on “Mandamus,” in discussing the same question, says (sec. 32):

The writ lies to make a body or officer charged with a duty, involving judgment or discretion, to take action in the matter. When a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact it cannot be directed to decide in a particular way, however clearly it may be made to appear what that decision ought to be. A court will be ordered to proceed to judgment, but it will not be instructed to render a particular judgment. … When a decision has been reached in a matter involving discretion, a writ of mandamus will not lie to review or correct it, no matter how erroneous it may be. . . .

Mr. Arthur L. Sanborn, one of the ablest of the judges of the United States District Court for the western district of Wisconsin in his article on “Mandamus,” published in volume 26 of the Cyclopedia of Law and Procedure (Cyc.), in discussing the right of the courts to issue mandamus against an auditor, says:

. . . Where a state auditor in the discharge of his duties has a discretion to exercise, as for instance in the allowance or rejection of a claim against the state, his decision cannot be controlled by mandamus … . Where there is another adequate remedy, as for instance, where the right of appeal is given to a claimant whose claim has been disallowed in whole or in part by the auditor, the writ will not lie. . . . (26 Cyc., 237.)

In speaking of the remedy by mandamus against the comptroller, Mr. Sanborn says (26 Cyc., 239):

. . . But the writ will not lie where its effect would be to interfere with the comptroller in matters requiring the exercise of judgment and discretion on his part. Thus it is held that a state comptroller cannot be compelled to audit claims against the state in any particular way or for any particular amount. In the same way where the duty of the comptroller to perform the act in question is not clear, or where is another adequate remedy at law, the writ will not lie. (Party vs. Colgan, 97 Cal., 251; People vs. Roberts, 163 N.Y., 70.)

Not only has it been the uniform doctrine maintained by the authorities of the Government of the United States and the law writers that those who are charged with the responsibility of auditing accounts in favor of and against the government must be left absolutely free and untrammeled, but the state governments of the United States as well have established the same doctrine.

In the case of Holliday vs. Henderson (67 Ind., 103) the court said:

. . . Where a state auditor in the discharge of his duties has a discretion to exercise as for instance in the allowance or rejection of a claim against the state, his decision cannot be controlled by mandamus, especially after the auditor has already acted upon the matter, . . . (26 Cyc., 237.)

(See also the following cases: Danley vs. Whiteley, 14 Ark., 687; People vs. Colorado Territorial Auditor, 2 Colo., 97; State vs. Thompson, 41 Mo., 13; State vs. Barnes, 25 Fla., 298; 23 Am., St. Rep., 516; Wailes vs. Smith, 76 Md., 469; Lewright vs. Love, 95 Tex., 157; People vs. Adam, 3 Mich., 427; Burton vs. Furman, 115 N.C., 166; Country of San Luis Obispo vs. Gage, 139 Cal., 398; People vs. Roberts, 163 N.Y., 70 Rutgers College vs. Morgan, 71 N.J.L., 663; State vs. Nolan, 8 Lea, 663; People vs. Attorney-General, 41, Mich., 728; Thompson vs. Watson, 48 Ohio, 552; Ewbank vs. Turner, 134 N.C., 77; State Board of Dental Examiners vs. People, 123 Ill., 227; State vs. Slocum, 34 Neb., 368.)

SECOND. What are the particular powers and duties relating to the final and conclusive decisions of the Auditor of the Philippine Islands, as provided for by law?

The following is a brief history of legislation for the Philippine Islands relating to the appointments, and authority of the Auditor in the settlement of accounts and claims against the Government.

First. ? During the Military Government

One of the very first orders, by President McKinley, as Commander-in-Chief of the Military forces in the Philippine Islands, provided for the protection of the public funds in the Treasury. President McKinley issued an executive order, from which the following paragraphs are quoted:

By virtue of the authority vested in me as the Commander-in-Chief of the Army and Navy of the United States, I hereby order and direct that during the maintenance of the Military Government of the United States in the Islands of the Philippine Archipelago, there is hereby created and shall be maintained the office of Auditor for the Islands, to be filled by appointment of the Secretary of War, whose duty shall be to received and audit all accounts of the Islands.

xxx; xxx; xxx

All rules and instructions necessary to carry into effect the provisions of the executive orders relating to said Islands shall be issued by the Secretary of War, and such rules and instructions shall be in force until the same are amended or revoked by the Secretary of War.

Under the instructions of the President and the Executive Order of the War Department (Executive Order May 8, 1899), certain rules and instructions which, after having received the approval of the President and Secretary of War, were transmitted to the United States Philippine Commission for enactment in the form of statute, which was done by Act No. 90 of the United States Philippine Commission. It was provided by the Secretary of War that the statutes so enacted could not be modified without the previous consent of the Secretary of War (letter by Secretary of War to the President [Mr. Taft] of the United States Philippine Commission, of Jan. 7, 1901).

From said rules and instructions we find the following pertinent provisions:

RULE 2. The Auditor for the Islands shall receive, examine and settle all accounts pertaining to the revenue and receipts derived from the Islands and expenditures paid therefrom, and certify the balance thereon to the Military Governor and shall preserved the accounts and vouchers after settlement.

RULE 41. Every contract under which payment may be made shall be submitted to the Auditor with the account to which such payment pertains.

RULE 44. The jurisdiction of the Auditor for the Islands over accounts, and all vouchers pertaining thereto, shall be exclusive. His decisions shall be final and conclusive upon administrative branches of the Military Government, except that appeals thereon may be taken by the party aggrieved or the head of the department concerned, within one year, in the manner prescribed in Rule Seventy-two. The Auditor for the Islands shall, except as herein otherwise provided, have like authority as that conferred by law upon the several auditors of the United States and the Comptroller of the United States Treasury, and is authorized to communicate directly with any person or officer having claims before him for settlement, or with any officer or department having official relations with his office.

RULE 72. Any person aggrieved by the action or decision of the Auditor in the settlement of the account or claim by the officer may within one year take an appeal in writing to the Military Governor, which shall specifically set forth the particular action of the Auditor to which exception is taken, with the reasons and authorities relied on for reversing such action. If the Military Governor shall confirm the action of the Auditor he shall so indorse the appeal and transmit it to the Auditor, and the action of the Auditor shall thereupon be final and conclusive. Should the Military Governor fail to sustain the action of the Auditor, he shall forthwith report his grounds of disapproval to the Secretary of War, together with the appeal and the papers necessary to a proper understanding of the matter. The decision of the Secretary of War in such case shall be final and conclusive.

Second. ? During the Civil Government

The “Taft United States Philippine Commission” at the very beginning of the exercise of its legislative power took steps to provide for an accounting of public funds by responsible accounting officer. Said Commission on the 28th day of February, 1901, enacted into a statute, known as Act No. 90, the Executive Order of May 8, 1899, including therein the provisions of an Executive Order issued by President McKinley on the 23d day of February, 1901. Commencing with said Executive Order of May 8, 1899, under the military government, which was brought forward and enacted into a statute by Act No. 90, under the civil government, we believe that the following Acts show all of the important legislation adopted by the Philippine Legislature and Congress relating to the duties, power and authority of the Auditor of the Philippine Islands: Acts Nos. 145, 195, 215, 328, 361, 456, 807, 909, 1402, 1792, 3066, and sections 24 and 25 of the Act of Congress of August 29, 1916.

Passing over the similar provisions of the said Acts, we come first to Act No. 1792, which was known as the “Accounting Act,” which was adopted with the consent of the Secretary of War of the United States. Section 2 of that Act provided that “there shall be an Auditor for the Islands, who shall be Director of the Bureau of Audits, and who shall be appointed by the Secretary of War, with the concurrence of the Governor-General and the approval of the Philippine Commission. The duty of the Auditor shall be examine, audit, and settle all accounts pertaining to the revenues and receipts from whatever source of the Insular Government, etc., and to audit, in accordance with law and administrative regulations, all expenditures of funds or property pertaining to or held in trust by the Insular Government, etc.”

Section 6 of Said Act (No. 1792) provided that:

The jurisdiction of the Auditor over accounts, whether of funds or property, and all vouchers and records pertaining thereto, shall be exclusive. With the approval of the Governor-General he shall from time to time make and promulgate general or special rules and regulations not inconsistent with law covering the methods of accounting for public funds and property, and funds and property held in trust by the Insular Governor or any of its branches: Provided, That any Director of Bureau or other office accountable for public funds or property under the provisions of this Act may require such additional reports or returns from his subordinates or others as he may deem necessary for his own information and protection.

The decisions of the Auditor shall be final and conclusive upon the executive branches of the Government, except that appeal therefrom nay be taken by the party aggrieved or the Head of the Department concerned, within one year, in the manner hereinafter prescribed. The Auditor shall, except as hereinafter provided, have like authority as that conferred by law upon the several Auditors of the United States and the Comptroller of the United States Treasury, and is authorized to communicate directly with any person having claims before him for settlement, or with any Department, officer, or person having official relations with his office.

Section 36 of said Act (No. 1792) provided that:

Any person aggrieved by the action or decision of the Auditor in the settlement of his account or claim may within one year take an appeal in writing to the Governor-General, which appeal shall specifically set forth the particular action of the Auditor to which exception is taken, with the reason and authorities relied on for reversing such decision. If the Governor-General shall confirm the action of the Auditor, he shall so indorse the appeal and transmit it to the Auditor, and the action shall thereupon be final and conclusive. Should the Governor-General fail to sustain the action of the Auditor, he shall forthwith transmit his grounds of disapproval to the Secretary of War, together with the appeal and the papers necessary to a proper understanding of the matter. The decision of the Secretary of War in such case shall be final and conclusive.

Section 11 of said Act No. 1792 provided for the appointment of a Treasury of the Philippine Islands, who “… shall received and safety keep all moneys arising from the revenues and receipts of the Islands from whatever source derived … and shall disburse the same only on warrants, countersigned by the Auditor,” etc. From a comparison with section 6 above quoted, with rules 44 and 72, and the Executive Order of May 8, 1899, as brought forward and made a part of said Act No. 90, it will be seen that the only difference, in fact, is that the “Military Governor” has been charged to the “Governor-General.”

The foregoing quotations show what the law was relating to the powers, duties and authority, and conclusiveness and finality of the decisions of the Auditor at the time of the adoption of the Act of Congress of August 29, 1916.

With reference to subparagraphs 5 and 6 of section 24 of said Act of Congress, we find the following provisions relating to the “powers, duties and authority, and conclusiveness and finality” of the decision of the Auditor:

The administrative jurisdiction of the Auditor over accounts, whether of funds or property, and all vouchers and records pertaining thereto, shall be exclusive. With the approval of the Governor-General he shall from time to time make and promulgate general or special rules and regulations not inconsistent with law covering the method of accounting for public funds and property, and funds and property held in trust by the Government or any of its branches: Provided, That any officer accountable for public funds or property may require such additional reports or returns from his subordinates or others as he may deem necessary for his own information and protection.

The decisions of the Auditor shall be final and conclusive upon the Executive Branches of the Government, except that appeal therefrom may be taken by the party aggrieved or the Head of the Department concerned within one year, in the manner hereinafter prescribed. The Auditor shall, except as hereinafter provided, have like authority as that conferred by law upon the several auditors of the United States and the Comptroller of the United States Treasury and is authorized to communicate directly with any person having claims before him for settlement, or with any department, officer, or person having official relations with his office.

It will be noted from said quoted provisions of the Act of Congress that they were practically taken in heac verba from Act No. 1792 of the Taft United States Philippine Commission, and in effect were exactly the same provisions which were enforced during the Military Government by Executive Order of May 8, 1899. By reference to section 36 of Act No. 1792, above quoted, we find that it was brought forward and made a part of section 25 of the said Act of Congress. Said section 25 provides:

That any person aggrieved by the action or decision of the Auditor in the settlement of his account or claim may, within one year, take an appeal in writing to the Governor-General, which appeal shall specifically set forth the particular action of the Auditor to which exception is taken, with the reason and authorities relied on for reversing such decision.

If the Governor-General shall confirm the action of the Auditor, he shall so indorse the appeal and transmit it to the Auditor, and the action shall thereupon be final and conclusive. Should the Governor-General fail to sustain the action of the Auditor, he shall forthwith transmit his grounds of disapproval to the Secretary of War, together with the appeal and the papers necessary to a proper understanding of the matter. The decision of the Secretary of War in such case shall be final and conclusive.

The Philippine Legislature evidently not being satisfied concerning the jurisdiction and power of the Auditor of the Philippine Islands, on March 16, 1923, adopted Act No. 3066 (vol. 18, Public Laws of the Philippine Islands, 140). That Act provided that the authority and power of the Auditor of the Philippine Islands shall extend to and comprehend all matters relating to accounting procedure, including the keeping of the accounts of the Government, the methods of accounting, the examination and inspection of the books, records and papers relating to such accounts, and to audit and settle the accounts of all persons respecting funds or property received or held by them in an accountable capacity, as well as to the examination and audit of all debts and claims of any sort, due from or owing to the Government of the Philippine Islands in any of its branches. The department of customs is one of the branches of the Philippine Government.

From all of the foregoing quotations, commencing with the Executive Order of May 8, 1899, down to the Act of Congress of August 29, 1916, and the Act of the Philippine Legislature of March 16, 1923 (Act No. 3066), there have been practically no changes whatever in the power, duty, authority, and finality and conclusiveness of the decisions of the Auditor of the Philippine Islands in the settlement of accounts against the Government.

Rule 44 of the Executive Orders of May 8, 1899, provided that: “The jurisdiction of the Auditor for the Islands over accounts, and all vouchers pertaining thereto, shall be exclusive. His decision shall be final and conclusive … . except that appeals thereon may be taken by the party aggrieved, etc.”

Rule 72 of said Executive Order of May 8, 1899, provided that: “Any person aggrieved by the action of decision of the Auditor in the settlement of his account or claim by that officer may within one year take an appeal in writing to the Military Governor, etc.”

Said rules 44 and 72 were made a part of said Act No. 90.

Section 6 of Act No. 1792 provided that the jurisdiction of the Auditor over accounts, whether of funds or property, and all vouchers and records pertaining thereto, shall be exclusive. The decisions of the Auditor shall be final and conclusive except that appeal therefrom may be taken by the party aggrieved within one year as provided in section 36.

Section 24 of the Act of Congress of August 29, 1916, among other things, provided that the jurisdiction of the Auditor over accounts, whether of funds or property, and all vouchers and record pertaining thereto, shall be exclusive. The decisions of the Auditor shall be final and conclusive upon the executive branches of the Government, except that appeal therefrom may be taken by the party aggrieved within one year, in accordance with section 25 of said Act.

Act No. 3066, of the Philippine Legislature, as late as March 16, 1923, provided that the authority and power of the Auditor shall extend to and comprehend all matters relating to accounting procedure of the Government and as well as to the examination and audit of all debts and claims of any sort due from or owing to the Government of the Philippine Islands in any of its branches.

From the foregoing it is clearly seen that the provisions of the Jones Law are not new in this jurisdiction. They have been in force in the Philippine Islands since the days of the Military Government. The Jones Law contains no provision not in force since the Executive Order of May 8, 1899.

From an examination of the admitted facts above quoted, it clearly appears that the petitioner herein is an aggrieved party resulting from the refusal of the Auditor to countersign the warrant issued by the Collector of Customs for the sum of P159,960. If he is an aggrieved party by the action of the Auditor, then the law affords him a remedy by an appeal to the Governor-General. Instead, however, of even attempting to take advantages of the remedy which the law affords him, he at once presented the present petition and asked this court to substitute its judgment for that of the Auditor, and to compel the Auditor to do what this court believes he ought to have done in the face of the fact that the law provides that “the decisions of the Auditor are final and conclusive” except when an appeal is taken therefrom.

No rule of law is better established than the one which provides that when “an administrative remedy is afforded” the courts will not take jurisdiction until after the administrative remedies have been exhausted. (First National Bank vs. Weld County, [1924], 264 U.S., 450; McGregor vs. Hogan, 263 U.S., 234; Farncomb vs. Denver, 252 U.S., 7, 10; Londoner vs. Denver, 210 U.S., 373; Price vs. Illinois, 283 U.S., 46; Petoskey, etc. Co. vs. Petoskey, 162 Mich., 447; Ward vs. Alsup, 100 Tenn., 619, 746.)

The administrative remedies must first be exhausted before resort can be had to the courts. The courts cannot assume that if the administrative remedy had been followed, proper relief would not have been accorded. (Collins vs. City of Keekuk, 118 lowa, 30, 35; Lo Po vs. McCoy, 8 Phil., 343; Jao Igco vs. Shuster, 10 Phil., 448; U.S., 161; U.S. vs. Yu Kiao, 20 Phil., 307; Lee Jua vs. Collector of Customs, 32 Phil., 24; Cooley on Taxation, 3rd ed., p. 1393.)

Nor will the petitioner be heard to say that there was not adequate time for hearing in the absence of any effort on his part to obtain one. (First National Bank vs. Weld County, 264 U.S., 450.)

It is admitted that, in any case where the Auditor is required to act and the laws gives him no discretion, he may be required to act by mandamus. (Work vs. United States ex rel. McAlester-Edwards Coal Co., 262 U.S., 200: Work vs. United States ex rel. Moiser, 261 U.S., 352.)

But this is not the case here.

An examination of the authorities relied upon to sustain the majority opinion, in order to ascertain their value in the premises, is important. The first is the case of Fernandez Hermanos vs. Collector of Customs (30 Phil., 50). In that case the Auditor was not a party. No question was presented concerning his authority. The only question discussed was, whether or not certain merchandise used in making certain repairs on the steamship Islas Filipinas at the port of Hongkong was admissible free of duty in the Philippine Islands. The Collector of Customs insisted that said merchandise was subject to an import duty. The steamship company asserted that the same was not subject to an import duty. That case clearly establishes the fact that the decision of the Collector of Customs is not final upon the question whether or not imported merchandise is subject to an import duty.

The next case cited in the majority opinion, in support thereof, is that of Gutierrez Hermanos vs. Collector of Customs (39 Phil., 876). In that case the Auditor was not a party. No question was raised concerning his authority. The only question discussed and decided was whether or not certain merchandise which had been used in making repairs to the steamship Magallanes in a foreign port could be brought into the Philippine Islands without the payment of an import duty. Again the court held that the decision of the Collector of Customs upon the question whether merchandise should be admitted with or without a duty was not a final decision.

The next case cited to support the conclusion of the majority opinion is that of Concepcion vs. Paredes (42 Phil., 599). We fail to see how that decision can be invoked to support the doctrine that this court can, by mandamus, compel the Auditor to countersign the warrant in question. The Auditor was not a party and no question was presented touching his authority to do or not to do anything.

The next case cited is that of Hoey vs. Baldwin (1 Phil., 551). We fail to see how that case can in any way support the doctrine contended for in the majority opinion. The Auditor was not a party. No question was presented nor discussed touching his power and authority.

The next case cited in support of the doctrine laid down by the majority opinion is that of Lamb vs. Phipps (22 Phil., 456). We agree that, that case is good authority upon the question of the power, authority and jurisdiction of the Auditor. In the case this court discussed at length the powers, the duties and the authority of the Auditor of the Philippine Islands. In the argument in the Lamb case, from the beginning to the end, every word used is contrary to the contention of the majority opinion.

The next case cited is that of Zobel vs. City of Manila (p. 169. ante). Here again the Auditor was not a party, and, of course, cannot be bound by any dictum contained in the decision in this case. The authority of the Auditor was not in question.

The next case cited in support of the conclusions of the majority opinion is that of the Compañia General de Tabacos de Filipinas vs. French, as Auditor of the Philippine Islands, and C.E. Unson, as Purchasing Agent of the Philippine Islands. That case was an original petition for the writ of mandamus presented in the Supreme Court. Its purpose was to compel the said Insular Purchasing Agent to issue a warrant to pay the freight on certain merchandise carried by the plaintiff in its steamship Venus amounting to P322.93. The petition further demanded that Mr. French, as Auditor, after the Insular Purchasing Agent had issued his warrant, countersign the same. Thus it will be seen that the petitioner was seeking to compel the Insular Purchasing Agent, with the intervention of the Auditor, to pay a contract of indebtedness which the petitioner claimed was due to it from the Insular Purchasing Agent.

The facts in that case may be briefly stated: that during the months of January, February, and March, 1919, the Compañia General de Tabacos de Filipinas, contracted with the Insular Purchasing Agent for the transportation of goods and merchandise from the port of Manila to sundry ports in the Philippine Islands; that the contract price for the transportation of said goods and merchandise, as freight, amounted to P322.93; that on one of the shipments of goods and merchandise transported from Manila to the municipality of Laoag, of the Province of Ilocos Norte, it was discovered that there had been lost in transmit a part of two cans of gasoline, which loss was estimated to amount to P5.92, or $2.96; that when the petitioner presented his bill for freight for the sum of P322.93, the Insular Purchasing Agent insisted that the amount of the loss of the gasoline should be deducted; that the petitioner objected to said deduction, insisted that it was not responsible for said loss; that later and after some controversy Mr. C.E. Unson, Purchasing Agent of the Bureau of Supply, issued his warrant, payable to the petitioner (the Compañia General de Tabacos de Filipinas) on the 27th day of April, 1919, for the sum of P317.01, being the amount of said freight, less the P5.92. That warrant was countersigned by C.H. French, Insular Auditor. The petitioner herein refused to accept said warrant even though it was countersigned by the Auditor M. French, unless the P5.92 was included. Later, and on the 9th day of May, 1919, a petition was presented demanding that the Supreme Court issue a writ of mandamus to compel the Insular Purchasing Agent to issue his warrant for the full amount of said freight, including the disputed claim of P5.92, and that when said warrant was once issued, that the Insular Auditor be required to countersign the same.

The respondents demurred to said petition upon the following grounds:

1. That the petition fails to show that the decision of the Auditor of the Philippine Islands, which is final and conclusive under the terms of the Organic Act of Government, has been appealed from, as provided n sections 24 and 25 of an Act of Congress entitled, “An Act to declare the purpose of the People of the Philippine Islands, and to provide a more autonomous government for those Islands,” approved August 29, 1916.

2. That the petition fails to show that the petitioner has taken an appeal from the decision of the Auditor of the Philippine Islands, as required by law, and as precisely laid down and governed by sections 652, 654, 655, and 656 of the Administrative Code.

3. That the petition affirmatively shows that the said petitioner has not pursued the remedy provided by law for the redress of the alleged injury to it, growing out the said decision of the Auditor of the Philippine Islands, and more precisely referred to in the said petition.

4. That the said petition contains no averment that the petitioner has exhausted the remedies provided by law for the relief which it now seeks by said petition, and that such petition, for want of such averment, is fatally defective.

Upon a consideration of the petition and the demurrer, it was ordered that the writ of mandamus issue in accordance with the prayer of the petition unless the respondent answer the petition within the period of five days. The respondent failed to answer said petition and the Supreme Court on the 27th day of May, 1919, ordered that a writ of mandamus issue, directing the respondents, the Insular Purchasing Agent and the Insular Auditor, to issue, countersign and deliver, in conformity with the customary usage, the proper treasury warrant, payable to the petitioner for the sum of P322.93, in satisfaction of the credit claimed for transportation services referred to in the complaint, without deduction or abatement; it being understood, however, that this order is without prejudice to the right of the Government of institute an independent action to recover the sum of P5.92, which is claimed by the Government to be due from the petitioner.

By the said final order it will be seen that the Supreme Court of the Philippine Islands first ordered the respondents to pay to the petitioner a certain amount due under a contract, which amount was disputed, and then reserved to the respondents the right to litigate the question concerning which the original differences of opinion arose. In other words, the Supreme Court, by the Insular Purchasing Agent to pay the full amount alleged to be due under a contract while said amount was in dispute, but reserved to the Government the right to bring an independent action for the purpose of setting the question in dispute between the parties originally.

We are unable to understand how the Supreme Court ever gave its consent to the issuance of mandamus to compel the payment of a disputed claim arising under a contract. If we understand the scope and purpose of the writ of mandamus and the jurisprudence relating thereto, there is no rule better established than the one, that such a remedy is not the proper remedy for the enforcement of contract rights of a private or personal nature, or debts, and obligations which rest wholly upon contract and which involve no question of trust or official duty, cannot be enforced by mandamus. A contrary doctrine would necessarily have the effect of substituting the writ of mandamus in place of a decree for specific performance and the courts have, therefore, steadily refused to extend the jurisdiction into the domain of contract rights. (State vs. Zanesville, etc., Co., 16 Ohio State, 308; State vs. County Court, 39 Mo., 375; Parrot vs. City, etc., 44 Conn., 180; State vs. Einstein, 46 N.J. Law, 479; State vs. Trustees etc., 114 Indiana, 389; High on Extraordinary Legal Remedies [3rd ed.] sec. 25; Portman vs. Fish Commissioner, 50 Mich., 258; Board of Education vs. Runnels, 57 Mich, 46; People vs. Thompson, 99 N.Y., 641.)

We deem it necessary to refer to the statutory authorities relied upon in the majority opinion, for the reason that they have been discussed above. In that discussion it has been demonstrated that none of the statutory authorities cited justifies the conclusions of the majority opinion.

In our judgment, the demurrer should have been sustained, and the writ of mandamus denied.

Ostrand, J., concurs.

Batas Pinas