ANTERO SORIANO, JR., PETITIONER AND APPELLANT, VS. HON. EMILIO L. GALANG, COMMISSIONER OF IMMIGRATION, RESPONDENT AND APPELLEE.

Appeal from an order of the Court of First Instance of Manila, Hon.
Bienvenido A. Tan, presiding, dismissing the petition of Antero
Soriano, Jr., for certiorari against the Commissioner of Immigration
for confiscating a cash bond in the amount of P2,000, executed by
petitioner Antero Soriano, Jr., on behalf of alien temporary visitor
Ngo Tiong Kian.

The petition alleges that petitioner, as bondsman of Ngo Tiong Kian,
an alien temporary visitor, filed a cash bond in the amount of P2,000
for the release of said Chinaman in September, 1950, and again another
bond for the same amount on July 30, 1956, also on behalf of said
Chinaman, copy of which second bond is attached to the petition as
Annex “A”; that on November 26, 1956, respondent declared the bond
posted by petitioner in favor of said Chinaman confiscated, on the
assumption that the Chinaman, as an alien temporary visitor, had
engaged on gainful employment without first being permitted in writing
to do so, and supposedly in violation of the conditions of his
temporary stay in the country; that the petitioner moved for the
reconsideration of the order of confiscation, alleging that the
Chinaman had engaged in gainful employment without permission had not
been established in a proper proceeding or inquiry, and that if an
inquiry was had it was not in accordance with democratic processes;
that assuming that the charge was established and that proper
investigation thereof was conduction, no condition of the cash bond had
been violated to warrant its confiscation or forfeiture, and said
confiscation was not proceeded with by hearing to determine whether the
bond should be forfeiture or not. The respondent denied the motion for
reconsideration above mentioned with the warning that if a new cash
bond is not filed for the Chinaman, the arrest and detention of
Chinaman would be ordered. It is further alleged in the petition that
the respondent had acted without or in excess of his jurisdiction, or
with grave abuse of discretion, and that his order of forfeiture is
illegal, null and void. Respondent presented an answer to the petition
admitting that the petitioner had filed a bond for Chinaman Ngo Tiong
Kian for P2,000 for his temporary stay, on September 28, 1950; that
copy of the bond which petitioner executed is Annex “1” to the answer
or Exhibit “2”, which contains the statement that petitioner has
applied to respondent for the temporary admission of Chinaman Ngo Tiong
Kian and the respondent had agreed to the temporary stay of said
Chinaman upon the filing of a cash bond by Soriano in the amount of P2,
000 and that among the conditions of the bond is one which reads as
follows:

” (g) That the undersigned agrees that
during the temporary stay of Ngo Tiong Kian he shall not acquire any
property nor make any investment nor be employed nor engaged 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;” (Annex “1” to Answer.)

The respondent further states in his answer that upon investigation
by him the said Chinaman was found to have been employed without the
written permission from the respondent; that the bond forfeited was the
bond dated September, 1950 and not the bond Annex “A”, dated July 30,
1956; and that the bond confiscated is the one that contains the
provision prohibiting the Chinaman from engaging in any lawful business
or occupation without the permission of the Commissioner; that the
confiscation of the bond rests exclusively within the discretion of the
respondent Commissioner as provided in Section 37 (e) as amended by Republic Act No. 144 and Section 40 of the Immigration Act of 1940.

The trial of the case was had principally on the pleadings of the
parties and the exhibits, without submission of further evidence. The
court thereafter held that the power of respondent to allow aliens to
post bonds for the temporary release in the Philippines rests
exclusively within his sound discretion (of the respondent), and that
the confiscation and forfeiture ordered by respondent in case at bar
cannot be attacked in a certiorari proceeding as the court lacked the
power to amend, reverse or nullify the acts of the Commissioner done or
exercised within his discretionary power as conferred by law. After the
denial of a motion for reconsideration, petitioner appealed to this
Court.

In the first assignment of error, it is claimed that the
respondent-appellee lias no power to confiscate a bond similar to
Exhibit “A” of the petitioner, which is a cash bond for “temporary
release pending deportation proceedings” in the Bureau of Immigration,
unless there be a breach of the conditions of the undertaking. The
error of the petitioner-appellant is his insistence that the bond which
the respondent-appellee declared forfeited is the bond furnished by him
on behalf of the Chinaman on July 30, 1956, copy of which is attached
to his complaint or petition as Annex “A”. As stated by the
respondent-appellee in his letter to the petitioner, dated November 26,
1956, and in his answer to the petition, the bond that was actually
confiscated by respondent-appellee is that furnished by the
petitioner-appellant dated September 28, 1950, for the sum of P2,000,
copy of which is attached to the answer as Annex “1” thereof. This
bond, as stated in the answer, is a bond for the temporary admission of
Ngo Tiong Kian and is expressly conditioned that the latter “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.” It is not the bond, Annex “A”, dated
September 30, 1956, that was confiscated; it was the bond Annex “1”,
attached to the complaint that was, and this latter bond contains the
condition above-quoted. It cannot, therefore, be argued on behalf of
the petitioner-appellee that there was no breach of any of the
conditions of the bond, for it is not denied that the Chinaman for whom
the bond was executed did actually engage in a lawful occupation,
having been employed as a store attendant of the Bingo Trading
establishment located at 668 Juan Luna, Manila (see Annex “B” of
Petition.)

The second alleged error is stated as follows:

“The lower court erred in considering that since the
bond had already been confiscated and forfeited in favor of the
government the remedy could no longer be that of certiorari.”

We find no error in the holding of the court below that the remedy
of certiorari does not lie. Certiorari lies only against a “tribunal,
board or officer exercising judicial functions. (Sec. 1, Rule
67.) Hence, the proceeding for certiorari instituted by
petitioner-appellant is not the proper remedy to contest or question
the validity of the confiscation of the bond in question.

The third assignment of error is as follows:

“The lower court erred in refusing to review and to
nullify the order of the appellee forfeiting and confiscating the cash
bond, of the appellant posted for Ngo Tiong Kian, alien temporary
visitor.”

Under this assignment of error it is argued that it is true that
under the provisions of Section 40 of Commonwealth Act No. 618, the
Commissioner of Immigration is entitled to declare the cash bond or
part thereof forfeited when there is breach of any of the conditions
imposed in the undertaking, but it is claimed that in the case at bar
there was no breach of the conditions in the undertaking. The mistake
of the petitioner-appellant, as already explained above, lies in the
fact that he insists that the bond that had been confiscated is the
bond dated July 30, 1956, executed by him. Note that this bond is a
bond “for the temporary release of one Ngo Tiong Kian, Chinese, male,
34 years of age, pending investigation of charges for deportation”
against him. The bond that was confiscated is that copy of which is
annexed to the answer as Annex “1”, which is one for the temporary
admission of Ngo. Tiong Kian, and which contains the prohibition in its
paragraph (g) against engaging in any business or undertaking without
the permission of the Commissioner of Immigration. We cannot understand
why in spite of the answer of the respondent that the bond confiscated
is that dated September, 1950, petitioner-appellee’s counsel insists
that the bond that had been confiscated is the other one, copy of which
is attached to his petition.

It is also argued under this assignment that the first bond, dated
September, 1950, Annex “1” to the answer, has been superseded by the
subsequent bond dated July 30, 1956, copy of which is attached to the
complaint as Annex “A”. There is no merit in this claim because the
bond for the temporary admission into the Philippines of an alien,
Annex “1” attached to the answer, is different from the bond for the
temporary release of the Chinaman pending investigation of charges for
deportation against him.

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. (Monies vs. Civil Service Board of Appeals, et al., 101 Phil., 490; 54 Off. Gaz. [7] 2174; Sampaguita Shoe and Slipper Factory vs. Commissioner of Customs, et al., 102 Phil., 850; 56 Off. Gaz. [231 4032; Rufino Lopez & Sons, Inc. vs. Court of Tax Appeals, 100 Phil., 850; 53 Off. Gaz., No. 10, p. 3065.)

The judgment appealed from is hereby affirmed, with costs against petitioner-appellant. So ordered.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Concepcion, Endencia, Barrera, and Gutierrez David, JJ., concur.