[ G.R. No. 46028. August 08, 1938 ] 66 Phil. 68
[ G.R. No. 46028. August 08, 1938 ]
AMADEO MATUTE, PETITIONER, VS. JAIME HERNANDEZ, AUDITOR-GENERAL OF THE COMMONWEALTH OF THE PHILIPPINES, RESPONDENT. D E C I S I O N
CONCEPCION, J.:
This is a petition for mandamus to compel the respondent Auditor-General of the Commonwealth of the Philippines to sign a treasury warrant, issued by the Director of Prisons in favor of petitioner Amadeo Matute.
Petitioner entered into a contract on December 24, 1936 with the Commonwealth of the Philippines, through its Purchasing Agent, with the consent and approval of the Secretary of Finance, whereby petitioner would supply the Government from January 1, 1937 to June 30, of the same year, with fresh meat at the following prices:
Hindquarters
per kilo
P0.37
Brisket, boneless
do
.38
As the City of Manila had raised the fees in the municipal slaughter house from two to three and a half centavos per kilo, petitioner asked the Purchasing Agent that the price per kilo of each class of meat be increased by one and a half centavos, or P0.38½ per kilo for the hindquarters and P0.39½ per kilo for the brisket, boneless. By letter dated March 2, 1937 C. E. Unson, technical adviser to the President and Acting Purchasing Agent, granted this request with the approval of the Undersecretary of Finance Guillermo Gomez.
During the period from March 1 to 15, 1937 petitioner supplied and delivered hindquarters fresh meat to the Bureau of Prisons. On May 31, 1937 the Director of Prisons, with the approval of the said Acting Purchasing Agent, made and signed a treasury warrant for the amount of P330.73, value of the meat supplied the Bureau of Prisons during the period above-mentioned. Said treasury warrant was sent to the respondent Auditor-General to be countersigned by him, but he refused to do so and ordered its return to the Director of Prisons to be cancelled. Hence, the present petition for mandamus.
In his answer the respondent Auditor-General, through the Solicitor-General, alleged, among other things, that the conformity given by the Acting Purchasing Agent, with the approval of the Undersecretary of Finance, to the increase in price per kilo of meat as requested by petitioner, was and is illegal and null and void for lack of valuable consideration and because no public bidding had been held for that purpose. Furthermore, neither the respondent Auditor-General nor the Secretary of Justice had been consulted, nor was the approval of His Excellency, the President of the Philippines, obtained before or after said conformity of the Purchasing Agent had been given.
Petitioner raises two questions, to wit:
Whether the Auditor-General, under the law, has the right and power to judge the merits and legality of any contract for supplies entered into by the Commonwealth of the Philippines through the Purchasing Agent.
Whether the amendment of the contract of December 24, 1936 raising the price of meat to be delivered to the Government by one and a half centavos, is illegal and null and void.
One of the duties of the Auditor-General, according to section 2, Article X of the Constitution, is to bring to the attention of the proper administrative officer expenditures of funds or property which, in his opinion, are irregular, unnecessary, excessive, or extravagant.
On the other hand, Executive Order No. 16, dated February 3, 1936, of His Excellency, the President of the Philippines, enjoined “that no contract for public service already in force or to be entered into for the first time by the Philippine Government or any of its branches, subdivisions, agencies, or instrumentalities shall be renewed or entered into without public bidding except for very extraordinary reasons and then only after the Auditor-General, the Secretary of Justice, and the Secretary of the Department concerned have been consulted and my approval has been secured beforehand.”
Now, then, may the Auditor-General refuse to countersign the treasury warrant in question? If, according to section 2, Article X of the Constitution, the Auditor-General has the right and duty to examine, audit and settle all accounts pertaining to the revenues and receipts * * * and to audit, in accordance with law, all expenditures of funds pertaining to the Government * * * and to bring to the attention of the proper administrative officer expenditures of funds or property which, in his opinion, are irregular, unnecessary, excessive, or extravagant, then it is logical to conclude therefrom that the act of countersigning the treasury warrant with his signature is not a merely ministerial duty of the Auditor-General, but a discretional power authorizing him to determine whether or not the expenditure in question is irregular, unnecessary, excessive, or extravagant.
In the instant case petitioner attempted to cash the warrant issued by the Director of Prisons for the value of the meat supplied that office during the period from March 1 to 15, 1937. According to the admitted facts above set out, petitioner bases his right upon the renewal of his contract with the Government. Said renewal, however, or the increase in the price of the meat allowed by the Acting Purchasing Agent was not effected in accordance with the requirements of Executive Order No. 16 as no public bidding had been held for that purpose, nor were the Auditor-General, the Secretary of Justice or the corresponding Secretary of Department at any time consulted in connection therewith, nor was the approval of His Excellency, the President of the Philippines, obtained. For lack of compliance with said Executive Order No. 16, the disbursement of money required by the treasury warrant issued by the Director of Prisons could not be legally authorized.
The increase in the price of meat allowed the petitioner by the Acting Purchasing Agent undoubtedly constitutes a novation of the contract of December 24, 1936 entered into between the Government and petitioner after a public bidding had been held.
According to article 1203 of the Civil Code:
“Obligations may be modified:
“1. By the change of their object or their principal conditions.
“2. * * * * * * *
“3. * * * * * * *
The price of the supply of meat to the Government was one of the principal conditions of the contract. Therefore, in order that the renewal thereof may be valid it was necessary to comply with Executive Order No. 16 which was amended by another Executive Order No. 98, defining what is meant by His Excellency, the President, by the words “contract of public service”, used in Executive Order No. 16, because in said Executive Order No. 98 it is ordered “that no contract for public service or for furnishing supplies, materials and equipment to the Government already in force or to be entered, etc.” The underlined portions show what should be understood by “public service.”
The petition is denied with costs against the petitioner. So ordered.
Avanceña, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Laurel, JJ., concur.