VICENTE GOTAMCO, PETITIONER, VS. BEN F. WRIGHT, INSULAR AUDITOR FOR THE PHILIPPINE ISLANDS, RESPONDENT.

OSTRAND, J.:

This is a petition for a writ of mandamus to compel the respondent to
countersign a warrant drawn by the Insular Collector of Customs on the
Philippine Treasury in favor of the petitioner.

It appears from the record and from the evidence presented that on October 6,
1920, four Chinese women, relatives of the petitioner, arrived at the port of
Manila from Amoy, China, on the steamship Taisang and were temporarily released
under the general bond of a firm of immigration brokers. According to the
testimony of witnesses for the petitioner, the immigrants on several occasions
went to the immigration division of the Bureau of Customs and asked that their
applications for entry be heard, but owing to the great congestion of cases
which were of a preferential character, the hearing of their cases was postponed
from time to time.

On April 11, 1922, the bond of the immigrants was changed into four “cash
bonds” of P500 each, the bondsman, the petitioner herein, depositing the money
in the “guarantee fund” of the Bureau of Customs, entering at the same time into
an undertaking in the following form for each of the immigrants :

“The Insular Collector of Customs,

“Manila.

“Sir:

“I respectfully request the temporary release of Ong Buan, Chinese woman, ex
S/S Taisang, Oct. 9, 1920, and I deposit herewith the sum of five hundred pesos
(P500) Philipine currency, as security, and agree to produce the said person at
any time that I may be called upon on twenty-four hours’ notice.

“I undertake that said person will not leave the City of Manila or its
immediate vicinity without the permission of the immigration authorities, and in
case of failure to produce her at the time and place and on the date demanded,
the Insular Collector of Customs may declare forfeited the whole or any part of
the deposit herewith made; it being clearly understood that such forfeiture does
not release me from my obligation to produce the said person for deportation at
a later date.

“All right to a re-hearing except for the production of documentary evidence
or expert testimony as to issue of fact is hereby expressly and voluntarily
waived.

“Photograph to be furnished.

“Respectfully,

(Sgd.) “V.
GOTAMCO”

On March 7, 1923, the Insular Collector of Customs made a formal demand upon
the petitioner for the production of the four immigrants, within fifteen days,
before the board of special inquiry of the Bureau of Customs in order that their
right to admission into the Philippine Islands might at last be determined, with
the warning that in case of failure to comply with said demand the cash bonds
above-mentioned would be forfeited. The petitioner failed to produce the
immigrants, apparently paying no attention to the demand, and on April 13, 1923,
the Insular Collector of Customs declared all of the cash bonds forfeited in
favor of the Philippine Government.

The petitioner received notification of the forfeiture on April 15, 1923. Two
days later the four immigrants left the Philippine Islands for China on the
steamship Kumsang, without appearing before the customs authorities. It
appears, however, that the petitioner notified the chief of the immigration
division of the Bureau of Customs and requested the latter to send an inspector
to the ship to identify them, giving as a reason for the request that one of the
immigrants was “too old to go to the office of the Bureau of Customs and the
others were ashamed to go there and be accompanied to the boat by a customs
inspector as if they were criminals.”

By virtue of the order of forfeiture the amount of the four bonds was taken
up as receipts of the Bureau of Customs and was, with the approval of the
Insular Auditor, transferred from the “guarantee fund” to the general
unappropriated fund of the Insular Treasury on April 28, 1923, in accordance
with section 573 of the Administrative Code. (See Exhibits 12, 15, 17, and
18.)

On April 30, 1923, the petitioner filed a protest with the Bureau of Customs
against the forfeiture of the bonds and on June 1, 1923, the Insular Collector
of Customs acknowledged receipt of the protest and advised the petitioner that
his request for refund would be given due consideration upon the production of
satisfactory evidence of the departure of the aforesaid immigrants.

After separate investigation both by the immigration division and the customs
secret service as to the truth of the claim of the petitioner that the
immigrants had left the Philippine Islands on April 17, 1923, the Collector of
Customs on June 5, 1924, advised the attorneys for the petitioner that the cash
bonds would be refunded; and on June 10 the collector attempted to revoke the
order of forfeiture and directed the cashier of the Bureau of Customs to draw a
warrant on the Philippine Treasury in the amount of P2,000 in favor of the
petitioner by way of refund of the bonds. The Insular Auditor refused to
countersign the warrant on the ground that the action of the Collector of
Customs in revoking the order of forfeiture and authorizing the refund of the
amount of the bonds forfeited was not well taken, and on the further ground that
the funds had reverted to the unappropriated surplus of the Insular Government,
in accordance with section 573 of the Administrative Code, at the end of the
year 1923, and could therefore not be withdrawn from the Insular Treasury
without legislative appropriation.

The present action was thereupon brought, the petitioner alleging that the
revocation of the order of forfeiture lay within the discretion of the Insular
Collector of Customs; that, therefore, the Insular Auditor was legally bound to
honor and countersign the treasury warrant drawn in pursuance of the order
revoking the order of forfeiture; and that in refusing to do so the Insular
Auditor exceeded his powers and neglected to perform a duty specially enjoined
upon him by the law.

That the Insular Collector of Customs has the power, within reasonable
limits, to revoke his own orders of forfeiture of cash bonds and may order the
refund of the money deposited as long as the funds remain in the guarantee fund
under his control, is not disputed, but it is obviously otherwise when the funds
have passed beyond his control and have reverted to the general unappropriated
fund of the treasury. Section 3 of the Organic Act expressly provides that “no
money shall be paid out of the Treasury except in pursuance of an appropriation
by law.” Neither the Insular Collector of Customs nor any other official of the
Government is authorized to order the expenditure of unappropriated funds, and
it necessarily follows that it is not only the right but the duty of the Insular
Auditor to withhold his approval of such expenditures.

But counsel argues that in this case the funds in question were transferred
to the general unappropriated funds of the Insular Treasury without the
petitioner’s consent and that he therefore has been deprived of his property
without due process of law. There is no merit in this contention. In depositing
the amount of the cash bonds the petitioner expressly agreed that the deposits
might be forfeited at any time upon his failure, on demand, the produce the
persons for whom the bonds were given.

If the forfeiture was legal the title to the funds deposited passed directly
to the Government immediately upon the declaration of the forfeiture and the
further disposal of the funds was no longer subject to the petitioner’s approval
or consent. He could assert no legal right to the funds and any relief from the
forfeiture would be merely a matter of grace.

That the forfeiture was legal admits of no doubt. The petitioner received
fifteen days’ notice of the demand for the production of the immigrants; under
the terms of the bonds he was entitled only to twenty-four hours’ notice.
Notwithstanding the ample notice given, the petitioner disregarded the demand
and did not even show the customs authorities the courtesy to explain his
failure to produce the immigrants or to ask for an extension of the time. Though
the demand was made on March 7, 1923, the forfeiture was not declared until
April 15th and the funds in question were not transferred to the general fund of
the treasury until thirteen days later. During all this time the petitioner had
ample opportunity to present his request for relief from the forfeiture and
might possibly have recovered his money, but he appears to have preferred to
treat both the customs authorities and the laws of the country with contempt and
must now suffer the consequences. His attitude has caused the agents of the
Government no little trouble and annoyance and his loss does therefore not seem
wholly unmerited.

The petition for a writ of mandamus is denied with the costs against the
petitioner. So ordered.

Johnson, Street, Malcolm, Avanceña, Villamor, and Romualdez,
JJ., concur.