NG HUA TO AND HEIRS OF ONG CHO, PETITIONERS-APPELLANTS, VS. EMILIO GALANG, ETC., RESPONDENT-APPELLEE.

Ong Cho filed on behalf of Ng Hua To, an overstaying Chinese
temporary visitor, with the Bureau of Immigration a cash bond in the
amount of P2,000.00 wherein he undertook, among other things, that Ng
Hua To shall not be employed or engaged in any business enterprise or
other undertaking in the Philippines incompatible with his status
without the written consent previously granted by the Commissioner of
Immigration. After an investigation conducted by the Office of the
Commissioner, it was found that Ng Hua To has been employed as manager
of an iron grill shop operated under the name of “Gun Suat Factory”,
situated at 1426 Soler, Manila, in violation of the aforementioned
condition of the bond. Consequently, on October 28, 1960, the
Commissioner of Immigration ordered the bond confiscated in favor of
the government and directed Ng Hua To to file a new cash bond of
P2,000.00 and a surety bond of P8,000.00 within three days from receipt
of the order, as otherwise his arrest and detention would be ordered.

Instead of complying with the order, Ng Hua To and the heirs of
bondsman Ong Cho, who in the meanwhile died on November 29, 1952, moved
for reconsideration of the order assailing the authority of the
Commissioner to confiscate the bond, and this motion having been
denied, they instituted the present petition for prohibition before the
Court of First Instance of Manila wherein they disputed the power of
the Commissioner to order the confiscation of the bond, in the same
manner as they did before, on the following grounds: (a) it is personal
in character and was extinguished by the death of Ong Cho, notice of
which was given to the Bureau of Immigration in 1952; (b) even if the
bond was’ not extinguished, it cannot be confiscated without proceeding
against the estate of the deceased Ong Cho; (c) the cash bond was the
subject of an extrajudicial partition among the heirs of Ong Cho; and
(d) such bond is void since its form was not approved in accordance
with Section 3 of Commonwealth Act No. 613. As an additional ground,
petitioners alleged that the threatened arrest of Ng Hua To is
unconstitutional since only a judge could issue a warrant of arrest
under Section 1, paragraph 3, of Article III, of the Constitution.
After due hearing, the court a quo found the petition without merit, and so it dismissed it with costs against petitioners. Hence the present appeal.

The cash bond executed by bondsman Ong Cho in behalf of petitioner Ng Hua To contains, among others, the following stipulations:

(g) That the undersigned agrees that during the
temporary stay of NG HUA TO he/she shall not acquire any property nor
make any investment nor be employed nor engage in any business
enterprise or whatever undertaking in the Philippines, without the
written consent for any such purpose previously granted by the
Commissioner of Immigration; * * *

****

“That
breach of any of the conditions abovementioned shall entitle the
Commissioner of Immigration to declare this cash bond or part thereof
forfeited, but shall not release the undersigned from the obligation to
produce said NG HUA TO for such action as may be taken against him/her.
No modification of this agreement shall be valid and effective unless
made in writing and signed by the Commissioner of Immigration or his
duly authorized representative.”

Clearly, the bondsman undertook that Ng Hua To during his stay in
the Philippines shall not be employed nor engaged m any business
enterprise or any other undertaking without the written consent
previously granted by the Commissioner of Immigration, and that in case
of breach of such condition, or any other condition in the contract for
that matter, the Commissioner may declare the bond forfeited in favor
of the government. It is likewise clear that such confiscation, if
declared, will not have the effect of releasing the bondsman from his
obligation to produce Ng Hua To if and when his commitment is required
by the Commissioner. Here it was found, after due investigation, that
such condition was violated, and acting on the authority given him
under the bond, the Commissioner of Immigration ordered the
confiscation of the bond and the recommitment of Ng Hua To. The
Commissioner, therefore, did not violate any legal provision, nor act
with abuse of discretion, when he ordered the confiscation of the bond
of P2,000.00, even if he required the posting of a surety bond of
P8,000.00 as a condition of his further continuance in the Philippines,
as averred by petitioners in this appeal.

The fact that when the order of confiscation was issued the bondsman
Ong Cho had already died cannot have the effect of defeating the
purpose of the bond. Such commitment has bound the bondsman to the
purpose thereof which is to allow Ng Hua To to remain in the
Philippines as a temporary visitor as long as he complies with the
conditions therein stipulated, and that commitment continues regardless
of the status of the bondsman. That commitment can only be released
after its purpose has been accomplished, not before. To hold otherwise
would be to subject the bond to a contingency not intended by the
parties.

It is not correct to state that petitioners had no other plain,
speedy and adequate remedy in the ordinary course of law before the
institution of the present civil action, for they could have filed a
new bond as required, and if they are not agreeable to it, they could
have appealed from the order to the Secretary of Justice who has direct
control and supervision over the Commissioner of Immigration. Having
failed to avail of this remedy, petitioners have not exhausted all the
administrative remedies available to them, thus rendering: their
petition defective and insufficient.

“There is another reason why the petition should be dismissed. This
is the fact that petitioner-appellant has not exhausted all the
administrative remedies which he is entitled to pursue. The
Commissioner of Immigration is directly under the control and
supervision of the Secretary of Justice, and if it is believed that the
said Commissioner has committed a grave abuse of discretion, as claimed
in the case at bar, the remedy should have been for the
petitioner-appellant to appeal to the Secretary of Justice for the
reversal or review of the confiscation of the bond in question. Having
failed to avail of this remedy, we must declare the petition for
certiorari prematurely brought in accordance with principles and
doctrines heretofore followed by us. (Montes vs. Civil Service Board of
Appeals, et al., 101 Phil., 490; Sampaguita Shoe and Slipper Factory
vs. Commissioner of Customs, et al., 102 Phil., 850; Rufino Lopez &
Sons, Inc. vs. Court of Tax Appeals, 53 Off. Gaz., No. 10, p. 3065.)”
(Antero Soriano, Jr. vs. Hon. Emilio L. Galang, 107 Phil., 1026.)

Because the Commissioner of Immigration has stated in his order that
if the new bonds required to be put up by Ng Hua To are not. met he
would order his arrest preparatory to his deportation, petitioners now
dispute the authority of the Commissioner to order such arrest upon the
theory that such power is only vested in a judge by Section 1,
paragraph 3, Article III of our Constitution, thereby concluding that
the pertinent provision of Commonwealth Act No. 613, as amended, which
gives such authority to the Commissioner is unconstitutional.

This argument overlooks the fact that the stay of appellant Ng Hua
To as temporary visitor is subject to certain contractual stipulations
as contained in the cash bond put up by him, among them, that in case
of breach the Commissioner may require the recommitment of the person
in whose favor the bond has been filed. The Commissioner did nothing
but to enforce such condition. Such a step is necessary to enable the
Commissioner to prepare the ground for his deportation under Section 37
(a) of Commonwealth Act 613. A contrary interpretation would render
such power nugatory to the detriment of the State.

Wherefore, the order appealed from is affirmed, with costs against appellants.

Bengzon, C. J., Padilla, Labrador, Concepción, Reyes, J. B. L. Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.