[ G.R. No. 7806. July 12, 1912 ] 22 Phil. 456
[ G.R. No. 7806. July 12, 1912 ]
CARROLL H. LAMB, PETITIONER, VS. W. H. PHIPPS, AS AUDITOR FOR THE PHILIPPINE ISLANDS, RESPONDENT. D E C I S I O N
JOHNSON, J.:
This was an application for the writ of mandamus presented to the Supreme Court. The petition alleged that:
“I. Relator states that both of the parties to this proceeding are within the jurisdiction of this court, respondent residing in the city of Manila and is the duly appointed and acting Auditor for the Philippine Islands; relator residing in the pueblo of Tacloban, Leyte, Philippine Islands, and prior to January 1, 1912, was an employee of said Government as superintendent of the Iwahig Penal Colony. “II. Respondent, as the ‘Insular Auditor’ has certain legal duties to perform which are especially enjoined by law or which are obligatory upon him by virtue of his office as Auditor for the Philippine Islands; and the said duties which relator desires coerced do not require on the part of said Auditor the use of discretion; but should this court decide that said duties are discretionary, then this relator alleges that respondent’s use of such discretion is exceptionally arbitrary and illegal. “III. It is the legal duty of respondent to issue an auditor’s certificate (clearance) to any employee or agent of the Government who has left the service, when the legal records of the office of the Auditor for the Philippine Islands demonstrate and show that the accounts of said employee or agent are balanced and that said agent or employee has properly accounted for all government property and funds which have come into his possession during the time of said employment. This status of relator’s accounts so exist, but respondent, though requested both verbally and in writing, has failed and refused, and unlawfully neglected to issue said certificate (clearance) – as a result of which relator is unlawfully excluded from the use and enjoyment of two of his rights:
“First. Without this clearance relator cannot collect from the Government the amounts due him for accrued leave, salary and transportation. (See note on Exhibit C.)
“Second. Without this clearance relator is deprived of his liberty and unable to leave these Islands; in fact, should necessity demand his leaving, and should he even attempt to leave, it would be a criminal offense for him to do so. (Sec. 665, Compilation of the Acts of the Philippine Commission.)
“IV. For twelve years relator has faithfully served the Government of the Philippine Islands, as soldier, as provincial treasurer of Marinduque, as provincial treasurer and supervisor of Mindoro, as provincial treasurer of Laguna, and for the past four years he has been the superintendent of the Iwahig Penal Colony, from which last named position, on account of ill health, relator voluntarily presented his resignation, and which was, on January 2, 1912, reluctantly accepted, as appears by Exhibits A and B, hereto attached.
“V. By respondent’s omission and neglect of legal duty, and by improper presentation of facts and law to the Chief Executive of these Islands, relator, in addition to the disgrace and discredit to his character and reputation, had instituted against him three charges for ‘malversation of public funds.’
“These charges, which should never have been presented, have, by direction of the Governor-General, the Honorable W. Cameron Forbes, been ordered dismissed or the prosecution thereof discontinued.
“VI. The copies of said charges demanded from the Attorney-General, being the only legal information of official misconduct received by relator, and they having been eliminated, relator’s attorney applied for his clearance, in order that relator might be at liberty and obtain the amounts due him from the Government, which amounts are badly needed by himself, wife and child; whereupon respondent placidly informed the said attorney that -
" ‘He would not grant said clearance, and that relator could not obtain any amounts due him, awaiting the result of a probable civil suit which might be filed by one Fernandez against the Government.’
“Yet the legal records of respondent’s office show that this same Fernandez has signed the vouchers and the warrant of payment, acknowledging to have received in full from the Government the amounts which would be the foundation for this ‘probable suit’
“VII. The dates of the transactions which would figure in the foundation of this ‘probable suit’ fall within the period from September 5, 1909, to November 17, 1910; and since said dates relator’s accounts have been balanced, and he was, on March 11, 1911, granted a clearance, copy hereto attached and marked Exhibit C; and up to the date of said clearance his accounts have been fully audited and balanced and closed; and said audit has not been revoked or reopened, nor can said accounts be now reopened so as to in any way affect the rights of relator in these proceedings.
“VIII. Covering the period from March 11, 1911, the date of said clearance, which latter is absolute and binding upon the Government and on respondent, up to and including December 31, 1911, the date of the effective acceptance of relator’s resignation, relator has accounted for all property and funds of the Government which have come into his possession; and it is not even claimed by the ‘Insular Auditor’ that he has not done so. “The said W. H. Phipps, as auditor, refused to issue said clearance for the above noted period because of the danger of a probable suit, application to bring which has not even been made, and never will be granted, as the last allegation in Paragraph VI of this petition demonstrates that this auditorial Fernandez claim has not the shadow of a shade of legal ground. “IX. Respondent’s action in the investigation of this whole affair has been illegal and improper. He has not only failed specifically to inform relator of the facts upon which this complaint was based, but actually refused to permit an attorney from his Office to sit with the Attorney-General in order that relator might be confronted with the facts alleged against him and given an opportunity to explain same.
“During relator’s absence from the colony, respondent’s deputies or agents, without warrant of law or without even asking permission of reiator, seized a locked and sealed box, the property of relator, and without his permission or warrant of law forcibly broke open same and extracted therefrom documents and papers,the personal property of relator and property for which relator, as superintendent of Iwahig Penal Colony, was responsible, and respondent has not returned same though requested to do so. This act of robbery respondent attempts to justify on the ground that it was ‘done in the presence of witnesses.’
“X. Relator’s attorney has been in Manila more than a month engaged in this case, trying to obtain from respondent a legal hearing; and relator himself, at great financial loss and mental worry, has remained ready to comply with any legal requirements of respondent for nearly three months. Both relator and his attorney have exhausted all ordinary means within human power to obtain from respondent this clearance or a legal reason for its withholding; but all efforts so to do have been in vain, and there is no other plain, speedy or adequate remedy in the ordinary courts of law by which relator can obtain relief, except through these proceedings.
“XI. Therefore, relator, in utter despair, appears before this court and begs it to hear his petition and to issue a peremptory mandate commanding W. H. Phipps, as Auditor for the Philippine Islands, to issue at once to C. H. Lamb a perfect clearance and one fully effective, so relator can enjoy his constitutional rights to liberty and property and upon which the said C. H. Lamb may obtain from the Government of the Philippine Islands all amounts due him for salary, accrued leave and transportation, by virtue of his employment as superintendent of the Iwahig Penal Colony. “Relator further asks damages against respondent in the amount of one thousand pesos (P1,000) Philippine currency, the expenditure of which amount relator has had to make by virtue of respondent’s illegal acts and neglect of duty, and that respondent pay the costs of these proceedings. “XII. In view of the fact that practically all the evidence upon which this petition is based is documentary and government reports, easily obtainable, and in view of the great unnecessary delay, expense and hardship already suffered by relator, and in view of the fact that relator is the general manager of a large business, just inaugurated by Amzi B. Kelly in Tacloban, Leyte, and that said business is practically at a standstill and without a head, the court is requested to expedite these proceedings, in accordance with the provisions of section 518 of the Code of Civil Procedure.
“Manila, March 18, 1912.
(Sgd.) “AMZI B. KELLY, “Attorney for relator.”
“EXHIBIT A.
“DEPARTMENT OF PUBLIC INSTRUCTION,
BUREAU OP PRISONS, “Manila, January 2, 1912.
“Sir : I have the honor to inform you that your resignation effective December 31st, 191.1, has been accepted
“You were appointed superintendent of Iwahig Penal Colony, on September 1st, 1908, at P6,000 per annum, by transfer from provincial treasurer of Laguna. “Your services have been satisfactory and no objection exists on the part of this Bureau to your reinstatement in any branch of the Philippine service. “Very respectfully,
(Sgd.) “M. L. STEWART, “Director of Prisons.”
“Mr. C. H. LAMB, Manila, P.I.”
“EXHIBIT B.
“DEPARTMENT OF PUBLIC INSTRUCTION,
“BUREAU OF PRISONS, “Manila, January 2, 1912.
“MY DEAR MR. LAMB: In accepting your resignation as superintendent of Iwahig Penal Colony, I desire to express my appreciation of the very excellent work done by you in that capacity. “When you relinquished your duties as treasurer of the Province of Laguna to accept this position on September 1st, 1908, the Iwahig Penal Colony was a problem, which you have very satisfactorily solved, and have succeeded in placing the colony in first class condition. “You have worked untiringly, intelligently, and satisfactorily, many times to the detriment of your own health, but as a result the. Iwahig Penal Colony stands out as one of the best examples that the history of penology knows. “I trust that your future will be as successful as your past and I know that you will give to your new duties the same loyal work that you have1 given to the Iwahig Penal Colony.
“With very best wishes, I am,
“Very sincerely,
(Sgd.) “M. L. STEWART,
“Director of Prisons.
“Mr. C. H. LAMB, Manila, P.I.”
“EXHIBIT C. “AFFIDAVIT OF OFFICER AND AUDITOR’S CERTIFICATE.
“Personally appeared before me, the undersigned C. H. Lamb, who exhibited to me his cedula certificate numbered 8715, issued at Manila dated 1/30/09, and who, being duly sworn, deposes and says, that he has rendered a full and complete accounting to the Auditor for the Philippine Islands for all funds and property for which he has been accountable or responsible under the provisions of existing law.
(Signed) “C. H. LAMB, “Supt. I. P. C.
“Subscribed and sworn to before me at Manila, P. L, this 11th day of March, 1911.
(Signed) “CHAS. A. STILES, Notary Public. “My commission expires Jan. 1st, 1913.”
(Here appears seal of Chas. A. Stiles, notary public.)
“I hereby acknowledge receipt of duplicate copies of this affidavit, which is confirmed by an examination of the records of this date, of accounts-current and property returns as rendered and received. “Manila, P. L, March 11, 1911.
(Signed) “W. A. RANDALL, “Acting Auditor. “By C. A. STILES.
“Note. - In the case of civil officers the proper disbursing officer will withhold final pay until the officer’s copy of this certificate is presented, duly signed by the auditor.” (Signed in duplicate.) “THIS CERTIFICATE MUST BE HELD IN READINESS FOR PRESENTATION, IF CALLED FOR, UPON EMBARKATION.”
“PHILIPPINE ISLANDS, “City of Manila, ss: “Carroll H. Lamb, late superintendent of Iwahig Penal Colony, states that he is the relator in the proceedings; that he has read and is familiar with the contents of each of the paragraphs of this petition, and that the statements made herein, except the conclusions of law and those quotations appearing as made by the Auditor for the Philippine Islands, are true and correct, and that the said conclusions of law and the said statements made to the relator’s attorney by said auditor are true to the best of relator’s knowledge and belief. (Sgd.) “C. H. LAMB, Relator.
“Sworn and subscribed to before me this 18th day of March, A. D. 1912, by C. H. Lamb, who presented cedula No. F-32719, issued at Manila on March 19, 1912.
(Sgd.) “V. Dimaguila, Notary Public. “My commission expires December 31, 1912.” (Notary’s seal.) “PHILIPPINE ISLANDS,
“City of Manila, ss:
“Amzi B. Kelly, attorney for relator, states that he is familiar with the contents of this petition, and that the statements quoted from the Insular Auditor, as herein written, were made to him by W. H. Phipps, the Auditor for the Philippine Islands; that the conclusions of law necessarily stated in this petition are the result of careful investigation and are true to the best of affiant’s legal knowledge and belief; that the other statements made in this petition have been investigated by affiant with much care and with all the power in his means, and that these statements are true to the best of his knowledge and belief.
(Sgd.) “AMZI B. KELLY, &“Attorney for relator.
“Sworn and subscribed to before me, this 18th day of March, A. D. 1912, by Amzi B. Kelly, who presented cedula No. F-418732, issued at Tacloban, Leyte, on January 13, 1912.”
(Sgd.) “V. DIMAGUILA, Notary Public. “My commission expires December 31, 1912.”
(Notary’s seal.)
Upon the presentation of the foregoing petition, the Supreme Court ordered the respondent to appear and show cause within a period of twenty-four hours, if possible, why the writ prayed for should not be granted. The respondent appeared and filed a demurrer based upon the following grounds, to wit:
“1. That the court has no jurisdiction to issue mandamus to the Auditor for the Philippine Islands.
“2. That the complaint does not state facts sufficient to constitute a cause of action.”
Upon the issue thus presented by the complaint and the demurrer, the cause was duly submitted to the court. After a careful consideration of the facts contained in the petition and the law applicable thereto, the court, on the 30th day of March, 1912, directed the following order to be entered, sustaining in part the demurrer:
“With reference to the demurrer interposed by the defendant in the application for a writ of mandamus, No. 7806, Carrol H. Lamb vs. W. H. Phipps, Insular Auditor, and reserving the right to render later a more extended judgment, the court said:
“‘Two reasons are given for this demurrer: one, lack of jurisdiction of this court to take cognizance of the petitioner’s application; and the other that the facts stated in the application do not constitute a cause of action; and " In view of the fact that the petitioner has not established in his application any facts other than that he submitted his accounts to the defendant and that the latter has not yet approved them through risk or fear that a claim may be presented, and that, even though these facts may be sufficiently proved at the trial, in addition to being admitted in the demurrer, they would not furnish sufficient grounds for granting the writ of mandamus, the demurrer is sustained and the petitioner is authorized to amend his application within five days. Messrs. Justices Carson and Trent dissent and Mr. Justice Trent reserves the right to submit later in writing his dissenting opinion.’ "
The above very brief order of the court was directed by reason of the fact that it was the last day of the session of the court for the January term of 1912, and for the further reason that no member of the court then had time to more fully state the reasons upon which said order was based. In view of the importance of the question presented, it is deemed advisable to more fully discuss the law relating thereto. It may be noted that the petitioner did not file an amended petition within the time mentioned in the above order. The facts involved in the present case are stated in the petition. The materiality of the exhibits is not quite clear. It is believed that all of the material allegations of the petition which the relator intended to make, eliminating all purely evidential and immaterial allegations, may be fairly stated as follows, to wit: First, that the relator had been for a period of four years the superintendent of the Iwahig Penal Colony. (See paragraphs 1, 4 and 9 of the petition.)
Second, that the relator has rendered an account for all property and funds of the Government which have come into his possession. (See paragraphs 3 and 8 of the petition.) Third ,that it is the legal duty of the respondent as Auditor for the Philippine Islands to issue an Auditor’s certificate (clearance) to any employee or agent of the Government who has left the service, when the records of the office of the Auditor show that the accounts of said employee or agent are balanced and that said employee or agent has properly rendered an account for all Government property and funds which have come into his possession during the time of said employment. (See paragraph 3 of the petition.)
MEANING OF AUDITOR’S CERTIFICATE OR CLEARANCE.
Before discussing the rules of law controlling in the present case, a word of explanation of what is meant by the Auditor’s certificate (clearance) may be of assistance to a better understanding of the purpose of the present petition. Act No. 1605 of the Philippine Commission provides that no bonded officer or bonded employee of the Insular Government, or of any provincial or municipal government in the Philippine Islands, or of the city of Manila, whether in the actual service of such Government or separated therefrom, shall leave or attempt to leave the Philippine Islands without first securing a certificate (clearance) from the Auditor showing that his accounts with the Government of which he is or was such bonded officer or bonded employee have been finally settled by said Auditor. Said Act further provides that any such officer or employee violating any of the provisions of this Act shall, on conviction thereof, be punished by imprisonment for not exceeding six months or by a fine of not more than P1,000 or both, in the discretion of the court. During the argument of the present cause, the attorney for the relator stated that he could not leave or attempt to leave the Philippine Islands, without rendering himself liable to a criminal prosecution under and by virtue of said Act (No. 1605), without having the Auditor’s certificate or clearance. It will be noted upon reading the petition that there is no word or intimation therein indicating in any way (except the allegation that the relator had been the custodian of Government property and funds) that he was a bonded officer. Unless he was a bonded officer or employee of the Government, said Act does not apply to him and there is no necessity for a clearance. Said Act (No. 1605) only applies tobonded officers or employees. It may be assumed, however, for the purposes of the present case, that the relator was a bonded officer or employee of the Philippine Government and that in the absence of the Auditor’s certificate or clearance he might be subjected to a criminal action under said Act (No. 1605) if he attempted to leave the Philippine Islands without said certificate.
DUTY OP THE AUDITOR IN APPROVING ACCOUNTS.
The relator alleges that he has rendered an account for all property and funds of the Government which came into his possession, and concludes that he is therefore entitled to an Auditor’s, certificate or clearance. Is the mere rendition of accounts of Government property and funds by an employee all that is necessary to entitle such employee to his clearance? Is the Auditor, who is responsible for the proper disposition of Government property and funds, obliged to accept a mere paper balance? Is the Auditor not to be given an opportunity to count the cash (funds) as well as to see that the property of the Government actually exists which had been in the possession or under the control of such employee? Is the Auditor not to be given an opportunity to make an actual inspection for the purpose of satisfying his own mind that the paper balance conforms with the actual facts? Experience has taught auditors as well as business men generally that mere paper balances are not always reliable. The actual funds and property are not always visible, in such balances. It is confidently contended that the Auditor is not obliged under the law to accept a mere paper accounting as final and conclusive as to the real responsibility of Government employees and to issue a clearance upon that alone. He may, it is true, if he is satisfied; but certainly, he may, if he so desires and if he has any doubt about the correctness of such accounts, make an actual examination of the funds and property represented by such paper accounts or balances. If, then, the Auditor is not obliged to accept the mere paper accounts or balances, when or within what time must he make his investigations and pass upon the accounts rendered? Must he do so immediately? The law does not so require. In justice to all parties and especially for the best interests of the Government, he should verify the accounts rendered as soon as practicable. In any event, the accounts must be verified and accepted or rejected before the lapse of three years. (Sec. 29, Act No. 1792.) At least, it would seem under said Act (Sec. 29, Act No. 1792) that after the lapse of three years the accounts cannot be reopened against an employee or agent. In the present case there is no allegation showing when the accounts were rendered. The relator resigned from his position on the 31st day of December, 1911. His resignation was accepted January 2, 1912. Certainly, his final accounts were not rendered before that date. In the present case, at least, there seems to have been no unreasonable or unnecessary delay, and there is no allegation in the petition to that effect. In fact the relator alleged that the respondent had already acted and had denied his claim (see paragraph 8 of petition) and gave what seems to be a good reason therefor.
Whenever a duty is imposed upon a public official and an unnecessary and unreasonable delay in the exercise of such duty occurs, if it is a clear duty imposed by law, the courts will intervene by the extraordinary legal remedy of mandamus to compel action. If the duty is purely ministerial, the courts will require specific action. If the duty is purely discretionary, the courts by mandamus will require action only. For example, if an inferior court, public official, or board should, for an unreasonable length of time, fail to decide a particular question to the great detriment of all the parties concerned, or a court should refuse to take jurisdiction of a cause when the law clearly gave it jurisdiction, mandamus will issue, in the first case to require a decision, and in the second to require that jurisdiction be taken of the cause. (De la Beckwith vs. Superior Court, 146 Cal., 496; State vs. Judges of Fifth Circuit Court of Appeals, 48 La. Ann., 672; Taylor vs. Montcalm Circuit Judge, 122 Mich., 692; Kelsey vs. Church, 112 N. Y. App. Div., 408; State vs. Smith, 69 Ohio, 196; Ex Parte Connaway, 178 U. S., 421; In re Grossmayer, 177 U. S., 48; Rex vs. Goodrich, 15 Q. B., 671; 69 Eng. Com. Law, 671; State vs. Foster, 106 La. Ann., 425.) In the present case, however, the mandamus is not for the purpose of compelling action only. It is presented for the purpose of requiring particular action on the part of the Auditor. There is a very wide distinction between the use of the writ of mandamus to compel action and its use to compel particular action on the part of a public official, board, or officer upon whom particular duties are imposed by law. This difference will be discussed later.
LEGAL DUTIES OF AUDITOR.
As to the legal duties of the Auditor for the Philippine Islands, we find that they are generally prescribed by the laws of the Philippine Legislature. (See Acts Nos. 90, 145, 215, 328, 909, 1402, and 1792.) Those duties which are not specifically and positively defined by such laws are prescribed by comparison with the duties of other officers which are well defined by law. (See sec. 6, Act No. 1792.)
Generally, the duty of the Auditor for the Philippine Islands shall be to examine, audit, and settle all accounts pertaining to the revenues and receipts from whatever source of the Insular Government, of the city of Manila, of the provinces, municipalities, townships, settlements, or other governmental branches. The jurisdiction of the Auditor for the Philippine Islands is exclusive over accounts, whether of funds or property, and all vouchers and records pertaining thereto. His decision upon such accounts is final and conclusive upon the executive branches of the Government except when an appeal therefrom is taken by the aggrieved party or the head of the department concerned within one year. Under the law of the Philippine Islands, the Auditor generally has like authority as that conferred by law upon the several auditors of the States of the United States and the Comptroller of the United States Treasury. (See sec, 6, Act No. 1792.) Sections 24 to 36 of Act No. 1792 provide in more or less detail a method of accounting for funds and property of the Philippine Government in its various branches and for the settlement of such accounts. Section 29 provides that even after accounts have been settled, the Auditor, on account of fraud, collusion, error in calculation, or newly discovered material evidence, or when in his judgment the interests of, the Government may seem to require it, is authorized within three years after the original settlement, to reopen any account previously settled by him or by a district auditor, and, after written notice to the person involved, and after a reasonable time for the reply or appearance of said person, to certify thereon a new balance. The foregoing, in a most general way, points out the duties of the Auditor for the Philippine Islands. His duties may be restated briefly as follows: (a) He has exclusive jurisdiction to examine, audit, and settle all accounts pertaining to the revenues and receipts from whatever source of the Insular Government, the city of Manila, the provinces, the municipalities, the townships, the settlements, or any other governmental branch; and (b) his decisions are final and conclusive except when an appeal is taken therefrom within one year. (Sees. 2, 6, Act No. 1792.) Section 36 of Act No. 1792 provides that when any person is aggrieved by the action or decision of the Auditor in the settlement of his accounts or claims, that such person, within one year, may 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 reasons and authorities relied upon for a reversal of the action or decision of the Auditor. If the Governor-General shall confirm the action of the Auditor, he shall so endorse the appeal and transmit it to the Auditor and the action shall thereupon be final and conclusive. Should the Governor-General refuse to sustain or approve the action of the Auditor, he shall forthwith transmit his grounds of disapproval to the Secretary of War, together with the appeal and papers necessary to a proper understanding of the matter. The decision of the Secretary of War in such cases shall be final and conclusive. To recapitulate then, we believe that the f ollowing propositions relating to the power and jurisdiction of the Auditor in auditing accounts for the different governmental entities of the Philippine Islands are true, to wit;
First, that the Auditor for the Philippine Islands has exclusive jurisdiction in the first instance to examine, audit, and settle all accounts pertaining to the revenues and receipts from whatever source of every governmental entity within the Philippine Islands.
Second, that his decision or the result of his accounting upon such revenues and receipts and accounts is final and conclusive upon all parties unless an appeal is taken within a period of one year.
Third, that the Governor-General of the Philippine Islands (See sec. 36, Act No. 1792) is not possessed with power to revoke or alter or modify the results of accountings made by the Auditor without reference to the Secretary of War.
Fourth, that when an appeal is taken to the Governor-General and the latter disapproves of the accounting made by the Auditor, he must at once forward to the Secretary of War for final action the matter in controversy.
If, then, the Auditor for the Philippine Islands is possessed with exclusive and final jurisdiction to audit all accounts of the Philippine Government, and if his judgment is final unless an appeal therefrom is taken and finally reversed by the Secretary of War, it would seem to be a reasonable conclusion to hold that he has at least a certain discretion in arriving at an uncontrolled and independent conclusion as to any accountability of any accountable employee or official of the Philippine Government.
The question which we are now discussing is not a new. one. Very early in the history of the American governments, both state and national, it was found to be very necessary to have some person or official of the government, who was absolutely free from control, to finally pass upon the legality of all governmental accounts. His freedom of action and his right to exercise his own discretion, untrammeled and uncontrolled, has been the basis of many a judicial, executive, and administrative decision. As early as the administration of President Jackson (1829-1837) and even before we find that this question was up for decision. In 1835 Mr. Jackson, then President of the United States, was asked to overrule a decision of the Comptroller of the United States. He declined so to do and made the following brief reply to said request:
“The decision of the second Comptroller is final, over whose decisions the President has no power except by removal.”
During the administration of Mr. Polk, a request was made of him to interfere with the adjustment of a claim which had been presented to and passed upon by the Comptroller of the United States, He declined to interfere and in so doing made the following observation:
“I decline to interfere on the ground that Congress has expressly given the authority to settle claims to the accounting officers * * * and that I have no right to control these officers in the performance of their duties.” (Aug. 9, 1845.)
As early as 1789 an Act was passed by the Congress of the United States providing that the auditing and revision of accounts should be made by officers holding their, appointments independent of heads of the departments and wholly unconnected with the disbursement of the public money. The Congress of the United States, in said Act, deemed it essential to the judicious and economical administration of the financial affairs of the government, that the officers who directed the expenditures should not also judge of their legality. Hence, we have, from the very beginning of the Government of the United States, laws which provided for the adjustment of accounts, by accounting officers, whose decisions were final and who held their appointment independent of the heads of the departments and wholly unconnected with the disbursements of the public funds. We find in Senate Document No. 6, at page 5 of the second session of the Twenty-third Congress of the United States, the following statement, which indicates the view of the Senate of the United States tipon the question which we are discussing;
“No effectual check can ever exist in any case where the same officer authorizes the expenditure and then audits, or controls the audit of the accounts.”
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 coming before them for settlement and certification of balances found by them to be due, is not ministerial merely but judicial and discretionary. This is shown not only by the express language of the statutes generally, but by the rulings of the Supreme Court of the United States. In the case of Watkins vs. United States (9 Wall., 759, 764) Mr. Justice Clifford, delivering the opinion of the court, said:
“Vouchers are required by the very words of the Act of Congress * * *. Without such evidences before the accounting officers there could not be any intelligent scrutiny of the claim nor any decision which would be satisfactory to the claimant or to the public.”
See also the decision of the Supreme Court of the United States in the case of Decatur vs. Paulding (14 Pet., 497) (1840), where Mr. Chief Justice Taney, in delivering the opinion of the court upon the question of the right of the courts to issue mandamus to control the action of an executive officer said:
“In general, the official duties of the head of one of the executive departments, whether imposed by Act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress, under which he is from time to time required to act. If he doubts, he has a right to call on the attorney-general to assist him with his counsel; and it would be difficult to imagine why a legal adviser was provided by law for the heads of departments, as well as for the President, unless their duties were regarded as executive in which judgment and discretion were to be exercised.” (Kendall vs. U. S., 12 Pet., 524.)
The statutes of the United States require the Comptroller to exercise his judgment upon the legality, not only of provisions of law and resolutions of Congress providing for the payment of money, but they also provide the means of procuring testimony upon which he may act. The statutes also provide him with counsel to enlighten him if he should deem it proper to extend his investigation beyond the papers submitted with the claim or account. (See Rev. Stat. of U. S., sees. 184,187, 269, 277.) 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. If they were mere opinions, they would not be final. 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 of 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 the 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 Auditor 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 governmant, 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. (U. S. vs. Arredondo et al., 6 Pet., 689, 729.) The legislative department of the government would not have made the decisions of the Auditor final, unless an appeal is taken therefrom, without intending to give to the Auditor 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 a 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. In the Case of Longwill vs. United States (17 Court of Claims, 291) it was said:
“The accounting officers of the treasury are in duty bound to scrutinize claims and accounts with great care, as is their custom, and it is the undoubted right of those who have 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 to which they believe there may be substantial defects in law or as to the validity of which they are in doubt.”
In the case of the Board of Liquidation et al. vs. McComb (92 U. S., 541) the court said:
“The objections to proceeding against state officers by mandamus or injunction are: First, that it is, in fact, 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 officers in matters belonging to the proper jurisdiction of the latter.”
For the courts to require an auditor to allow or disallow a claim against or in favor of the Government would be to substitute the courts as the auditing officers of the Government. Such a result was not contemplated by a law, which conferred upon another department of the Government the final and exclusive jurisdiction to consider claims. (Kendall vs. U. S., 12 Pet., 524; The Borough of Uniontown vs. The Commonwealth of Pennsylvania, 34 Pa., 293; Habersham et al. vs. Savannah etc. Canal Co., 26 Ga., 665; State of Iowa etc. vs. County Judge etc., 7 Iowa, 186.) Under the statutes of the United States the comptroller is by express statute authorized to examine accounts and to certify balances thereon. The exercise of this power necessarily involves the exercise of judicial discretion. Judicial action cannot be subject to any control or direction, except by law, or by an appeal. It is independent of all control except by law. 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 the United States vs. Lynch (137 U. S., 280), a petition was presented in which it was alleged -
“That the respondents (the comptrollers) have refused, and still do continue to refuse, to pay the petitioner, or to credit him with, the sum of $288.60, that being the amount remaining unpaid on the said travel under the said Act of Congress.” To this petition the respondents (the comptrollers) demurred upon the following ground:
“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.”
In passing upon the right of the relator to the writ of mandamus, Mr. Chief Justice Fuller, speaking for the court and citing the case of Decatur vs. Paulding (14 Pet, 497), supra, said:
“It is now argued that the duty of the Fourth Auditor and of the Second Comptroller under the last clause of section 2 of the Act of 1835, and the decision of this court in relation to it, was merely ministerial, and that by the disallowance of relator’s claim for mileage these officers exercised a discretion which they did not possess; that this was an invalid exercise of an authority under the United States; and that hence the validity of the authority was drawn in question. * * *
“We think that the authority of the second comptroller and the fourth auditor is not thus denied here, nor the validity of that authority questioned, but that what his claim is that in the exercise of a valid authority, the Auditor and Comptroller erred in respect to an allowance, in view of the decision of this court in another case.
“The writ of error must be dismissed and it is so ordered.”
In the case of Riverside Oil Co. vs. Hitchcock (190 U. S., 316), the relator presented a petition in the Supreme Court of the District of Columbia asking for a writ of mandamus to compel the respondent, the Secretary of the Interior,” to vacate a certain order made by him in relation to the dis-position of public lands. Mr. Justice Peckham, speaking for the court and citing again the case of Decatur vs. Paulding, supra, said:
“That the decision of the questions presented to the Secretary of the Interior was no merely formal or ministerial act is shown beyond the necessity of argument by a perusal of the foregoing statements 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 this case the Supreme Court of the District of Columbia refused to issue the mandamus, and the Supreme Court of the United States affirmed that decision.
The writ of mandamus cannot be used to control the judgment and discretion of an officer in the decision of a matter which the law gave him the power and imposed upon him the duty to decide for himself. In the case of Bates and Guild Co. vs. Payne (194 U. S., 105), an application was made for the writ of mandamus to compel Mr. Payne, then Postmaster-General of the United States, to receive and transmit through the mails, as matter of the second class, a certain periodical known as “Masters of Music.” Mr. Justice Brown, speaking for the 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”
With reference to the power of Comptrollers of the Treasury of the United States, it may be said that they are by express statute authorized to examine accounts and to certify balances thereon, (U.. S. Rev. Stat., sec. 269.) Tfre exercise of this power involves judicial discretion. Judicial action cannot be subject to any control or direction except by law and continue to be judicial action. It is independent of all control except by law or otherwise it cannot be judicial. The authority so given should be exercised with that untrammeled independence of judgment which is absolutely essential to its proper exercise. It will be noted that wjiat has been said with reference to the independence of the Comptroller of the United States Treasury is also applicable to the Auditor for the Philippine Islands for the reason that section 6 of Act No. 1792 provides that he shall have like authority as that conferred by law upon the several auditors of the states of the United States and the Comptroller of the United States Treasury. We have hitherto cited authority from the courts of the United States. It will be interesting to know what the authors and law writers have said upon this question.
Dr. James L. High, one of the clearest American law writers, in his valuable work on “Extraordinary Legal Remedies” (3rd ed.) in section 102, after discussing the right of the courts to coerce the performance of purely ministerial duties, says:
“Where, however, auditing officers entrusted by law with the duty of passing upon and determining the validity of claims against the state, are vested with powers of discretionary nature as to the performance of their duties, a different rule from that above stated prevails. In such cases the fundamental principle 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. Aries, 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; State vs. Oliver, 116 Mo., 188; Burton vs. Furman, 115 N. C, 106; 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 cases 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 or liquidate said claim for the payment of a particular sum, nor will the writ go te 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 “Injunctions and Other Extraordinary Remedies,” in a very learned and extensive discussion of the questions 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, (United States vs. Seaman, 17 How., 225; People vs. Fairchild, 67 N. Y., 334; State vs. Board of Liquidators, 29 La. Ann., 264; Freeman vs. Selectmen of New Haven, 34 Conn., 406; Rutter vs. State, 38 Ohio, 496; United States vs. Commissioner, 5 Wall., 563; People vs. Board of Commissioners of Cook County, 176 111., 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. Merrill, 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 can not 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, judge 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 there is another adequate remedy at law, the writ will not lie. (Patty 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. ih 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; County 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, 123 111., 227; State vs. Slocum, 34 Neb., 368,) An examination of the decisions of the Supreme Court of the Philippine Islands will show that it has followed the general rule above noted with reference to, the issuance of mandamus. The general rule adopted by the Supreme Court of the Philippine Islands is that mandamus will never be issued (a) to control discretion, nor (6) when another adequate remedy exists. (See Knight vs. McMicking, 2 Phil. Rep., 698; Manotoc vs. McMicking, 10 Phil. Rep., 119; Cruz Herrera vs. McMicking, 14 Phil. Rep., 641; Gonzalez y Salazar vs.. The Board of Pharmacy, 20 Phil. Rep., 367.) In this latter case, it was said:
“It is essential to the issuance of a writ of mandamus that the plaintiff have a clear legal right to the thing demanded and it must be the imperative duty of the defendant to perform the act required. It never issues in doubtful cases. While it may not be necessary that the duty be absolutely express, it is necessary that it should be clear. The writ will not issue to compel an official to do anything which it is not his duty to do or which it is his duty not to do, or to give to the applicant anything to which he is not entitled by law. The writ neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed. (Calvo vs. Gutierrez, 4 Phil. Rep., 203.)”
The writ of mandamus cannot be used to control the discretion of a judge or to compel him to decide a case or a motion pending before him in a particular way. He must be left to exercise the discretion which the law imposes upon him; (Merchant vs. Rosario, 4 Phil. Rep., 316; Macke et al. vs.. Camps, 5 Phil. Rep., 185; Debrunner vs. Jaramillo, 12 Phil. Rep., 316.)
DISCRETION DEFINED.
Discretion may be denned as “the act or the liberty to decide according to the principles of justice and one’s ideas of what is right and proper under the circumstances, without willfulness or favor,” (Standard Dictionary, ed. 1911.) Mr. Webster defines discretion as the “freedom to act according to one’s own judgment; unrestrained exercise of choice or will.”
Mr. Black in his valuable law dictionary says:
“Discretion, when applied to public functionaries, means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. * * *
“Lord Coke defined discretion to be ‘discernere per legem quid sit justum.’” Mr. Bouvier defines discretion as follows:
“That part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is uncontrolled by fixed rules of law. The power exercised by courts to determine questions to which no strict law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.”
Judge Slanborn, in his article on mandamus (26 Cyc, 161) defines discretion, when applied to public functionaries, as the power or right conferred upon them by law acting officially under certain circumstances, according to the dictates “of their own judgment or conscience and not controlled by the judgment or conscience of others. (Farrelly vs. Cole, 60 Kan., 356, 44 L. R, A., 464; State vs. Hultz, 106 Mo., 41; Oneida Common Pleas vs. People, 18 Wend., 79; Rio Grande County vs. Lewis, 28 Colo., 378.)
MINISTERIAL DUTY DEFINED.
A purely ministerial act, in contradistinction to a discretional act, is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without, regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. (Ex parte Batesville etc. Ry. Co., 39 Ark., 82, 85; American Casualty Ins. Co. vs. Fyler, 60 Conn., 448, 25 Am. St. Rep., 337; Gray vs. State, 72 Ind., 567; Flournoy vs. Jeffersonville, 79 Am. Dec, 468; State vs. Cook, 174 Mo., 100; Marcum vs. Lincoln Co. etc., 42 W. Va., 263, 86 L. R. A., 296.) A ministerial act is one as to which nothing is left to the discretion of the person who must perform. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law. (Sullivan vs. Shanklin, 63 Cal., 247; Mississippi vs. Johnson, 4 Wall. (U. S.), 475.) It is a precise act accurately marked out, enjoined upon particular officers for a particular purpose. (Bassett vs. Atwater, 65 Conn., 355, 363, 82 L,. R. A., 575.) If the law imposes a duty upon a public officer and gives him the right to. decide how or when the duty shall be performed, the duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion nor judgment. (Henkel vs. Millard, 97 Md., 24.)
ANOTHER ADEQUATE REMEDY DEFINED.
As a general rule it may be said that by the phrase “another adequate remedy” is meant one specifically provided by law. If the remedy is specifically provided by law, it is presumed to be adequate. We cannot presume that a remedy expressly provided by the legislative department of the government is not adequate. If, perchance, and in fact it is not adequate, it is the duty of the legislative department and not of the judicial department to correct it.
Under the law the decision of the Auditor is final unless an appeal is taken within one year. The Auditor is the chief or director of one of the executive branches of the government. The appeal permitted is to the head of that branch of the government (first to the Governor-General and second to the Secretary of War).
The right to appeal from the decision of an offices or court to which a particular matter is specifically referred is purely statutory. If the legislative department of the government by statute has not given the right of appeal, such right does not exist. This court said in the case of Pavon vs. Telephone and Telegraph Co. (9 Phil. Rep., 247) that -
“The right to appeal is and always has been statutory, and does not exist in common law. It is a remedy which the legislature may in its discretion grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken.” (Resolution of Supreme Court, Nov. 25, 1907; Aragon vs. Araullo, 11 Phil. Rep., 7; Sullivan vs. Haug, 82 Mich., 548, 555.)
Under the law in cases like the present, the aggrieved party has the right to appeal. He did not take advantage of that right, nor has he exhausted the ordinary remedy afforded him by express law. He is not entitled to this extraordinary remedy until he has at least exhausted the ordinary remedies afforded him by law.
When a plain, adequate and speedy remedy is afforded by and within the executive department of the government, the courts will not interfere until at least that remedy has been exhausted. (Jao Igco vs. Shuster, 10 Phil Rep., 448; Ekiu vs. U. S., 142 U. S., 651; U. S. vs. Sing Tuck, 194 U. S., 161; U. S. vs. Ju Toy, 198 U. S., 253; Chiu Yow vs. U. S., 28 Sup. Ct. Rep., 201.) The administrative remedies afforded by law must first be exhausted before resort can be had to the courts, especially when the administrative remedies are by law exclusive and final. Some matters and some questions are by law delegated entirely and absolutely to the discretion of particular branches of the executive department of the government. When the law confers exclusive and final jurisdiction upon the executive departments of the government to dispose of particular questions, their judgments or the judgment of that particular department are no more reviewable by the courts than the final judgment or decisions of the courts are subject to be reviewed and modified by them.
Our attention has been called to what appears to be a typographical error in the wording of section 222 of Act No. 190. That section reads in part as follows:
“When the complaint in an action in a Court of First Instance alleges that any inferior tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station * * * and the court, on trial, finds the allegations of the complaint to be true, it may, if there is no other plain, speedy and adequate remedy in the ordinary courts of law, * * *.”
It is asserted that the phrase “courts of law” should read “course of law.” Many of the provisions of said Act No. 190 were copied verbatim from the Code of Civil Procedure of California. Section 222 of Act No. 190 was taken from section 1085 of the California Code of Civil Procedure. The section of the California Code reads “course of law,” instead of “courts of law.” We believe that a mistake or error has been made in the printing of said section. We believe that it was the intention of the legislative department of the government to follow exactly the provision of the California Code and that they intended to use the phrase “course of law” and not “courts of law.” It will be noted in section 226, the section relating to the writ of prohibition, the legislature used the phrase “course of law.” An examination of the Spanish translation of said section (222) more clearly indicates what the legislative department of the government intended. In Spanish the other remedy is not limited to the ordinary “courts of law.” We are permitted under Act No. 63 as amended by Act No. 1788 to refer to the Spanish text, for the purpose of explaining the English text. Act No. 1788 provides:
“In the construction of all Acts or laws which may be enacted by the Philippine Legislature, the English text shall govern, except that in obvious cases of ambiguity, omission, or mistake the Spanish text may be consulted to explain the English text.”
We cannot believe that the legislature intended to limit the jurisdiction of this court in mandamus to the cases where there was ho other adequate and speedy remedy in the ordinary courts of Jaw. It is our duty, therefore, to give the statute a sensible construction; such as will effectuate the legislative intention and, if possible, avoid an injustice or an absurd conclusion (Lau Ow Bew vs. U. S., 144 U. S., 47, 59). Clerical errors or misprints, which, if uncorrected, would render the statute unmeaning or nonsensical or would defeat or impair its intended operation, will not vitiate the act; they will be corrected by the court and the statute read as amended, provided the true meaning is obvious, and the real meaning of the legislature is apparent on the face of the whole enactment. (Black on Interpretation of Laws, p. 77; Lancaster vs. Frey, 128 Pa., 593; Lancaster County vs. City of Lancaster, 160 Pa., 411.)
Since writing the foregoing we have received a very recent (March 11, 1912) decision of the Supreme Court of the United States, upon the question which we have been discussing. Again the doctrine announced in the case of Decatur vs. Paulding (14 Peters, 497) has been confirmed. In this decision (U. S. ex rel. Ness vs. Fisher, United States Supreme Court’s Advance Sheets, No. 10, p. 356 [March 11, 1912]), the question was whether mandamus would lie against the Secretary of the Interior, for the purpose of controlling his decisions after he had rejected the relator’s claim or application. The supreme court, speaking through Mr. Justice Van Devanter, said:
“So, at the outset we are confronted with the question, not whether the decision of the Secretary was right or wrong, but whether a decision of that officer, made in the discharge of a duty imposed by law, and involving the exercise of judgment and discretion, may be reviewed by mandamus and he be compelled to retract it, and to give effect to another not his own, and not having his approval. The question is not new but has been often considered by this court, and uniformly answered in the negative. (Decatur vs. Paulding, 14 Pet., 497, 515, 10 L. ed., 559, 568; United States ex rel. Tucker vs. Seaman, 17 How., 225, 230, 15 L. ed., 226, 227; Gaines vs. Thompson, 7 Wall., 347, 19 L. ed., 62; Litchfield vs. Register (Litchfield vs. Richards) 9 Wall., 575, 19 L. ed., 681; United States vs. Schurz, 102 U. S., 378, 26 L. ed., 167; United States ex rel Dunlap vs. Black, 128 U. S., 40, 48, 32 L. ed., 354, 357, 9 Sup. Ct. Rep., 12; United States ex rel. Riverside Oil Co. vs. Hitchcock, 190 U. S., 316, 324, 47 L. ed., 1074, 1078, 23 Sup. Ct. Rep., 698.) Original discussion being foreclosed by these cases, we will merely quote from two of them to illustrate the reasoning upon which they proceed. In the Decatur case, Decatur vs. Paulding [supra], it was held that mandamus could not be awarded to compel the head of one of the executive departments to allow a claim, under one construction of a resolution of Congress, which he had disallowed under another construction, the court saying: ‘The duty required by the resolution was to be performed by him as the head of one of the executive departments of the government, in the ordinary discharge of his official duties. In general, such duties, whether imposed by Act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress, under which he is from time to time required to act. * * * If a suit should come before this court which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by the head of a department. And if they supposed his construction to be wrong, they would, of course, so pronounce their judgment. But their judgment upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the Act of Congress in order to ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or judgment. Nor can it by mandamus act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties. * * * The interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given to them.’ And in the Riverside Oil Co. case (U. S. ex rel Riverside Oil Co. 190 U. S., 316) where it was sought by mandamus to compel the Secretary of the Interior to depart from a decision of his to the effect that a forest reserve lieu-land selection must be accompanied by an affidavit that the selected land was non-mineral in character and unoccupied, it was held that his judgment and discretion could not be thus controlled, it being said; ‘Congress has constituted the Land Department, under the supervision and control of the Secretary of the Interior, a special tribunal with judicial functions, to .which is confided the execution of the laws which regulate the purchase, selling, and care and disposition of the public lands. * * * 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 or injunction. The court has no general supervisory power over the officers of the Land Department by which to control their decisions upon questions within their jurisdiction. If this writ were granted we would require the Secretary of the Interior to repudiate and disaffirm a decision which he regarded it his duty to make in the exercise of that judgment which is reposed in him by law, and we should require him to come to a determination upon the issues involvled directly opposite to that which he had reached, and which the law conferred upon him the jurisdiction to make. Mandamus has never been regarded as the proper writ to control the judgment and discretion of an officer as to the decision of a matter which the law gave him the power and imposed upon him the duty to decide for himself. The writ never can be used as a substitute for a writ of error. Nor does the fact that no writ of error will lie in such a case as this, by which to review the judgment of the Secretary, furnish any foundation for the claim that mandamus may therefore be awarded. The responsibility, as well as the power, rests with the Secretary, uncontrolled by the courts.’
“The relator seems to believe that Roberts vs. United States (176 U. S., 221; 44 L. ed., 443; 20 Sup. Ct. Rep., 376) and Garfield vs. United States (211 U. S., 249; 53 L. ed., 168; 29 Sup. Ct. Rep., 62) in some way qualify the rule so stated; but this is a mistaken belief. Both cases expressly recognize that rule, and neither discloses any purpose to qualify it. In the former the duty directed to be performed was declared to be ‘at once plain, imperative, and entirely ministerial.’ And in the latter, the writ was awarded to compel the respondent to erase and disregard a notation which he arbitrarily and unwarrantably had caused to be made upon a public record, and which beclouded the relator’s right to an Indian allotment.
“We conclude that the decision of the respondent in the present case was not arbitrary or merely ministerial, but made in the exercise of judgment and discretion conferred by law, and not controllable by mandamus, and therefore that the Court of Appeals rightfully directed that the petition be dismissed.”
After a full and careful consideration of the facts and the law applicable to the same, our conclusions may be stated as follows: (a) That the courts will take jurisdiction of a cause against the Auditor for the Philippine Islands, in a proper case, to compel action on his part, when by reason of unnecessary delays in taking any action at all, persons have been deprived of a right and have no other adequate and speedy remedy in the ordinary course of law.
(b) That the right to allow or disallow a claim against the Government of the Philippine Islands or any of its branches is, by law, within the discretion of the Auditor.
(c) That the remedy, by appeal, given under Act No. 1792, to the aggrieved party to the Governor-General and Secretary of War is another remedy and is speedy and adequate and exclusive. (d) That when the final decision of a question is by law left to the executive branch of the government, the courts will not interfere until the remedy in that branch has been exhausted, and not always then.
We are of the opinion that the first ground of the demurrer should be overruled and that the second should be sustained; and for the reason that the relator has not amended his petition within the time heretofore prescribed by this court, the same is hereby dismissed with costs. So ordered.
Arellano, C. J., Torres and Mapa, JJ., concur. Carson, J., dissents.