[ G.R. No. 23601. September 22, 1925 ] 47 Phil. 866
[ G.R. No. 23601. September 22, 1925 ]
YNCHAUSTI & CO., PETITIONER, VS. BEN F. WRIGHT, AUDITOR OF THE PHILIPPINE ISLANDS, RESPONDENT. D E C I S I O N
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 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 and 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 or taxes erroneously and illegally collected by the Philip- pine 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 had 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 not 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 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 thrust 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 component 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 thrust 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 (R. G. 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 rates 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 possessions except as otherwise provided in this Act, shall be as follows:
" ‘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 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:
" ‘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 the 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 an 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 prime 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 repairs 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 arid within a reasonable time.” This Act, as amended, was put into legal force and effect by a proclamation of 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 to 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 matter 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 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.
“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 bought 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.’
“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 unimportant.”
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 county commissioners to examine and settle all ‘accounts.’ "
In the instant case, there was only one item which grew out of one transaction, and the only question involved was the legality of the claim. Hence, petitioner’s claim was not an account within the 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.
“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 law and administrative regulations” means what it says. In other words, the “audit” should be 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 time;
“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 Constitution.—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 conform 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 receive 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 tie contract for the purchase of this property to be invalid, or at least unenforcible, is that the Insular Auditor has refused to countersign the warrant for the first instalment 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 to 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 the 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.
“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 if 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, countersign, 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 a 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 Chief Justice Taft, and it is there said:
" ‘Every statute to some extent requires construction by the public officer whose duties may 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, then 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 to 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 complained of in the certiorari proceedings, but a remedy which will promptly relieve the petitioner from the injurious effects of that 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 powers 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 witnesses, 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 sections 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 denned, 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 or 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 of 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 Acts of Congress and of the Philippine 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.