K. D. LAW, PLAINTIFF AND APPELLANT, VS. JOAQUIN NATIVIDAD, COLLECTOR OF CUSTOMS IN AND FOR THE PORT OF CEBU, DEFENDANT AND APPELLEE.

This
is an appeal from a judgment of the Court of First Instance of Cebu
denying a petition for a writ of mandamus to compel the respondent
Collector of Customs to issue a license to the petitioner as
immigration broker at the port of Cebu.

The case was tried upon the following stipulation of facts:

“Come
now McVean & Vickers, attorneys for plaintiff herein, and Gervasio
Diaz, provincial fiscal of Cebu, attorney for the defendant herein, and
stipulate and agree that the facts creating the issue in the foregoing
action are as follows:

“1. That plaintiff is of legal age,
a citizen of the Republic of China, and a resident of the municipality
and Province of Cebu, Philippine Islands.

“2. That the
defendant Joaquin Natividad is of legal age and a resident of the
municipality and Province of Cebu and duly qualified Collector of
Customs of the port of Cebu.

“3. That on December 8, 1908,
the Insular Collector of Customs of Manila, Philippine Islands, issued
Chinese Immigration Circular No. 218 which was to become effective 30
days after promulgation at each port and that paragraph 16 of said
circular provided as follows:

” ‘PAR.
XVI. Nothing in this circular shall be construed to permit any person
not a citizen of the Philippine Islands or of the United States to act
as an immigration broker nor to give any employee in the office of an
attorney at law greater rights than such employee would have before the
Courts of First Instance, nor to give to any employees in the office of
a duly licensed broker any right to appear before immigration officers
in any other capacity than as a messenger.’

“4.
That said circular was issued under authority of paragraph 5, section
19, Act No. 355, as amended, under which licenses for customs
immigration brokerage shall be granted and revoked.

“5.
That on the 23d day of February, 1909, the Collector of Customs at the
port of Cebu issued General Order No. 3 which reads as follows:

” ‘February 23, 1909.

			” ‘	PROMULGATING CHINESE AND IM-
	” ‘GENERAL ORDER	]		MIGRATION CIRCULAR NO. 218 AND
	NO. 3	]		APPOINTING BOARD FOR EXAMINA-
				TION

”
‘Paragraph I. Chinese and Immigration Circular No. 218 issued by the
Insular Collector of Customs, Manila, P. I., December 8, 1908, is
hereby promulgated to take effect at this port March 22, 1909, with the
provision that persons not citizens of the Philippine Islands or the
United States may apply for license as immigration broker, the
provision contained in paragraph XVI of Chinese and Immigration
Circular No. 218 to the contrary notwithstanding.

” ‘Par.
II. Persons desiring to obtain the license provided for in said
circular should make due application in writing within the next ten
days.

” ‘Par. III. Mr. Harold Homan, acting deputy
collector of customs, Mr. Sidney C. Schwarzkoff, chief immigration
division, and Mr. Manuel Santibañez, inspector of customs, are hereby
appointed a board as provided for by paragraph IV of C. I. Circular No.
218.

” ‘Par. IV. The Board shall meet at such time and
place as may be found convenient and carry out the instructions
contained in paragraph V in said Chinese and Immigration Circular.

” ‘COLLECTOR OF CUSTOMS’

“6.
That pursuant to said General Order No. 3 above set forth, the
plaintiff herein did within ten days of February 23, 1909, make
application for a license to conduct an immigration broker’s business
and during the month of May, 1909, successfully passed an examination
for qualification as an immigration broker and plaintiff, having
thereafter executed the required bond in the amount of two thousand
pesos, was issued a license to act as immigration broker on or about
the 1st day of June, 1909.

“7. That the plaintiff continued
to act as an immigration broker from the 1st day of June, 1909, until
June 1, 1918, when his license was cancelled by the Collector of
Customs of the port of Cebu on the ground that he was not a citizen of
the Philippine Islands or of the United States of America.

“8.
That thereafter on the 31st day of March, 1923, the plaintiff was
reinstated and relicensed as an immigration broker by defendant herein
as appears by a true copy of Exhibit A, filed herewith and made a part
hereof, and continued to act as such until the 31st day of March, 1924,
when the defendant herein refused to reissue a license to this
plaintiff on the ground that he was not a citizen of the United States
nor of the Philippine Islands as appears by a true copy of Exhibit B,
filed herewith and made a part hereof.

“9. That the
plaintiff is a person of good moral character and his general
reputation is good; nor has plaintiff failed at any time to comply with
the immigration laws and regulations; nor has he in any manner exceeded
his authority as an immigration broker; nor has he made
misrepresentation in any manner to his clients, prospective clients, or
the Government of the Philippine Islands; nor has he been guilty of
illegal acts or objectionable methods in securing and transacting
business; nor has he been guilty of irregularities; nor has he
performed or committed any act which would justify the cancellation of
his license.

“10. That the refusal on the part of the
defendant herein to issue an immigration broker’s license in favor of
plaintiff on March 31, 1924, was pursuant to instructions from the
Insular Collector of Customs at Manila based on a ruling on a protest
filed by one Januario Ch. Veloso against the plaintiff herein on the
ground that plaintiff was not a citizen of the United States or of the
Philippine Islands and that the refusal on the part of the defendant,
the Hon. Joaquin Natividad, was not based on his own decision but on
orders from a superior officer, the Insular Collector of Customs.

“11.
That it is within the province of this Honorable Court after a review
of the law and facts involved in this case to determine whether or not
the supervision over customs and immigration brokers practicing at the
port of Cebu is by law conferred on the Insular Collector of Customs in
Manila or the Collector of Customs at the port of Cebu.

“It
is hereby agreed that the attorneys for the plaintiff shall file a
written memorandum in support of their contention and one week after
the fiscal shall file a written memorandum in support of the
defendant’s contention in this case.”

Upon
the facts so stipulated the court below held that the issuance of a
license to the petitioner as immigration broker is a matter of
discretion and cannot be enforced by mandamus; that paragraph 16 of
Chinese Immigration Circular No. 218 was issued by authority of
paragraph 5, section 19, of Act No. 355 and is still in force; and that
General Order No. 3 issued by the Collector of Customs could not have
the effect of repealing or modifying the prohibition contained in said
Circular No. 218.

The appellant presents the following assignments of error:

“I.
The court erred in holding that paragraph XVI, Chinese Immigration
Circular No. 218, is applicable to the present case. II. The court
erred in holding mandamus not the proper remedy. III. The court erred
in refusing to grant the order of mandamus.”

Under the first assignment, it is in substance argued that an
immigration broker is not a customs house broker; that subsection 5 of
section 19 of Act No. 355 relates only to customs house brokers and not
to immigration broker; that therefore the Insular Collector of Customs,
in undertaking to prescribe the conditions under which licenses for
immigration brokers should be granted, exceeded his authority; and that
under section 1157 of the Administrative Code, the granting of licenses
for immigration brokers is entirely under the jurisdiction of the
collector of customs of the port and is not subject to the control of
the Insular Collector of Customs.

We cannot accept the
appellant’s view. Act No. 355 was expressly repealed by the final
article of the Administrative Code, but that Code contains several
provisions which in our opinion give the Insular Collector of Customs
full supervisory control over the official acts of his subordinates,
the collectors of the ports.

Section 550 of the
Administrative Code provides that the “Director or other chief official
in each Bureau or Office shall exercise the functions of chief
executive and administrative officer thereof. It shall be his duty,
under the immediate executive control, direction, and supervision of
the proper Department head, to exercise general authority in all
matters embraced within the jurisdiction of the Bureau or relating to
the operation thereof and to see to the enforcement of all laws and
regulations pertaining to it.”

Section 1139 reads in part as follows:

“The general duties, powers, and jurisdiction of the Bureau of Customs shall include:

* * * * * * *

“(g)
The enforcement of the customs laws and other laws of the United States
or Philippine Islands relating to customs, commerce, navigation,
immigration, and Chinese exclusion in and for said Islands, and the
enforcement of the lawful quarantine regulations for vessels entering
Philippine ports.”

Section 1152 reads:

“At
each principal port of entry there shall be a collector of customs who,
under the supervision and control of the Insular Collector, shall be
the official head of the customs service in his port and district and
shall there exercise the functions of captain of the port.

“At
Manila the Insular Collector and the Insular Deputy Collector shall
respectively discharge the duties of collector of customs and deputy
collector of customs for the said port.”

In
refusing to grant the license in question, the Collector of Customs of
the port of Cebu acted under the instructions of the Insular Collector,
the chief official of the Bureau of Customs, and under the provisions
above quoted from the Administrative Code, there can be no doubt that
he was in duty bound to obey such instructions.

In regard to
the second and third assignments of error, it is sufficient to say that
the granting of licenses to customs house or immigration brokers is
left in the discretion of the customs authorities, and it is an
elementary principle that discretionary action cannot be controlled by
mandamus.

The judgment appealed from is therefore affirmed with the costs against the appellant. So ordered.

Avanceña, C. J., Street, Malcolm, Johns, and Romualdez, JJ., concur.