This was an application for the writ  of mandamus  presented to the Supreme Court.  The petition  alleged that:

 "I.  Relator states that both of the parties to this proceeding are within the jurisdiction  of this court,  respondent residing in the city of Manila and is the duly appointed  and acting Auditor for the Philippine Islands; relator residing in  the pueblo of  Tacloban, Leyte, Philippine  Islands,  and prior to January 1, 1912, was  an employee of said Government as superintendent of the  Iwahig Penal Colony.
   
"II. Respondent, as the  'Insular Auditor' has  certain legal duties to perform  which are  especially enjoined by law or which are obligatory  upon him by virtue of  his office as Auditor for the Philippine Islands; and the said duties which relator desires  coerced do not  require on  the part of said Auditor the use of discretion; but should this court  decide that said duties are discretionary,  then this relator alleges that respondent's use of such  discretion is exceptionally arbitrary and illegal.
   
 "III. It  is the legal  duty of respondent to  issue an  auditor's certificate  (clearance) to  any employee or agent of the Government who has left  the service,  when the legal      records of the office of the Auditor for the  Philippine Islands  demonstrate and show that the accounts of  said employee  or agent are balanced and that said agent or employee has  properly accounted for all government property and funds which have come  into his possession  during the  time  of said employment.  This  status of  relator's accounts so exist, but  respondent, though requested both verbally and in writing, has failed and refused, and unlawfully neglected  to  issue  said certificate  (clearance) -- as a result of which relator is unlawfully excluded from the use and enjoyment of two of his  rights: 

"First. Without this clearance relator cannot collect from the Government the amounts due him for accrued leave, salary and transportation.    (See note on Exhibit C.)

"Second. Without this clearance relator is deprived of his liberty and unable to leave these Islands; in fact,  should necessity demand his leaving, and should he even attempt to leave, it would be a criminal offense for him to  do so. (Sec. 665,  Compilation of the Acts of the Philippine Commission.)

"IV.  For twelve years relator has faithfully  served the Government of the Philippine Islands, as soldier, as provincial  treasurer of Marinduque, as provincial treasurer and supervisor of  Mindoro, as  provincial treasurer of Laguna, and for the past four years he has been the superintendent of the Iwahig Penal Colony, from which last named position, on account of ill health, relator voluntarily presented his resignation, and which was,  on January 2, 1912, reluctantly accepted, as appears by Exhibits A and B,  hereto attached.

"V. By respondent's  omission and neglect of  legal duty, and  by improper presentation  of facts  and law  to the Chief Executive of these Islands, relator, in addition to the disgrace and discredit to his character and reputation, had instituted against him  three charges for 'malversation of public funds.'

"These charges, which should never have been presented, have, by direction of the Governor-General, the Honorable W. Cameron Forbes, been ordered dismissed or the prosecution thereof discontinued.

"VI. The copies of  said charges demanded from the Attorney-General, being the only legal information of official misconduct received by relator, and they having been eliminated,  relator's  attorney  applied for his  clearance,  in order that relator might be at liberty and obtain the amounts due him from the Government,  which amounts  are badly needed by  himself,  wife and child; whereupon respondent placidly informed the said  attorney that -

" 'He would not  grant said clearance, and that  relator could not obtain any amounts due him, awaiting  the result of a probable civil  suit which might  be  filed by one Fernandez against the  Government.'

"Yet the legal records of respondent's office show that this same Fernandez has signed the vouchers and the warrant of payment, acknowledging to have received in  full from the Government the amounts which would be the foundation for this 'probable suit'

"VII. The dates of  the transactions which would figure in the foundation of  this  'probable suit' fall within  the period from September 5,  1909, to November  17,  1910; and since said dates relator's accounts have been balanced, and he was, on March 11, 1911,  granted  a  clearance, copy hereto attached and marked Exhibit C; and up to the date of said clearance his  accounts have  been fully  audited and balanced and closed; and said audit has  not  been revoked or reopened, nor  can said accounts be now  reopened so as to in any way affect the rights of relator in these proceedings.

"VIII. Covering the period from March 11,  1911,  the date of said clearance, which latter is absolute and binding upon the Government  and on respondent,  up to and including December 31, 1911, the date of the effective acceptance of relator's resignation, relator has accounted for all property and funds of the Government which have come into his possession; and it is not even claimed by the 'Insular Auditor' that he has not done so.
   
  "The said W. H. Phipps, as auditor, refused to issue said clearance for the above noted period because of the danger of a probable suit, application to bring which has not even been made,  and never will be granted, as the last allegation in Paragraph  VI of this petition demonstrates that this auditorial Fernandez claim has not the shadow of a shade of legal ground.
   
  "IX.  Respondent's action in the investigation of this whole affair has been illegal and improper.   He has not only failed specifically to inform relator of the facts upon which this complaint was  based, but actually  refused to permit an attorney from his Office to  sit with  the  Attorney-General in order that relator might be  confronted with the  facts alleged  against him and  given an opportunity to explain same.

"During relator's  absence  from the colony, respondent's deputies or agents, without warrant of  law or without even asking permission of reiator, seized a locked and sealed box, the property of relator,  and  without his permission or warrant of law forcibly broke  open same  and extracted therefrom documents and papers,the personal property of relator  and property for which relator,  as superintendent of Iwahig Penal Colony, was responsible, and  respondent has not returned same though requested to do so.  This act of robbery  respondent attempts  to justify  on the ground that it was 'done in the presence of witnesses.'

"X. Relator's attorney has been in Manila more than a month engaged in this case, trying to obtain from respondent a legal hearing;  and relator himself, at great financial loss and mental worry, has remained ready  to comply with any  legal requirements  of  respondent  for nearly three months.   Both relator and his attorney have exhausted all ordinary means within human power to obtain from  respondent this clearance or a  legal reason for its withholding;  but all efforts so to do have been in vain, and there is no other plain, speedy or adequate remedy in the ordinary courts  of  law by which  relator can obtain relief, except through these proceedings.

"XI. Therefore, relator, in utter despair, appears before this court and begs it to hear his petition and to issue  a peremptory mandate commanding W. H. Phipps, as Auditor for the Philippine Islands, to issue at once  to C. H. Lamb a perfect clearance and one  fully effective, so relator can enjoy his constitutional rights  to liberty and property and upon which  the  said C.  H. Lamb may obtain  from the Government of the Philippine Islands all amounts due him for salary, accrued leave  and transportation, by virtue of his employment  as superintendent of  the Iwahig Penal Colony.
   
"Relator further asks damages against respondent in the amount of one thousand pesos (P1,000) Philippine currency, the expenditure of which  amount relator has  had to make by virtue of respondent's illegal acts and  neglect of duty, and that  respondent pay the  costs of these  proceedings.
   
 "XII. In view of the fact that practically all the evidence upon  which this petition is based is documentary and government reports,  easily obtainable, and in view of  the great unnecessary  delay, expense  and  hardship already suffered by relator, and in view of  the fact that relator is the general manager of a large business, just inaugurated by Amzi B. Kelly  in Tacloban, Leyte, and that said business is  practically at a standstill and without a head, the court is  requested to expedite these  proceedings, in accordance with  the provisions of section 518 of  the Code  of Civil Procedure. 

"Manila, March 18, 1912.

                                              

"DEPARTMENT OF PUBLIC INSTRUCTION,   

  BUREAU OP PRISONS,     
  "Manila, January 2, 1912.

 "Sir : I have the honor to inform you that your resignation effective December 31st, 191.1, has been accepted

"You were appointed  superintendent of  Iwahig Penal Colony, on September 1st, 1908, at P6,000 per annum, by transfer from provincial  treasurer of Laguna.
           
"Your services have been satisfactory and no objection exists  on the part of this Bureau to your reinstatement in any branch of the Philippine service.
           
  "Very respectfully,

(Sgd.)   "M. L. STEWART,
  "Director of Prisons."

"Mr. C. H. LAMB, Manila, P.I."

"EXHIBIT B.

"DEPARTMENT OF PUBLIC INSTRUCTION,

"BUREAU  OF PRISONS,
"Manila, January 2, 1912.

"MY DEAR MR.  LAMB:  In accepting your resignation as superintendent of Iwahig Penal Colony, I desire to express my appreciation of the very  excellent work done by you in that capacity.

"When you  relinquished your duties as treasurer of the Province of Laguna to accept this position on  September 1st, 1908,  the  Iwahig Penal Colony was a problem, which you have very satisfactorily  solved, and have succeeded in placing the colony in first class condition.

"You have worked untiringly, intelligently, and satisfactorily,  many times to the detriment of your own health, but as  a result the. Iwahig Penal Colony stands out as  one of the best examples that the history of penology knows.

"I trust that your future will be as successful as your past and I know that you will give to your new duties the same loyal work that you have1 given to the Iwahig Penal Colony.

"With very best wishes, I am,

"Very sincerely,	(Sgd.)   "M. L. STEWART,
	"Director  of Prisons.
"Mr. C. H. LAMB, Manila, P.I."

"EXHIBIT C.
           
"AFFIDAVIT OF OFFICER AND AUDITOR'S  CERTIFICATE.

"Personally appeared  before me, the undersigned C.  H. Lamb, who exhibited to me his cedula certificate numbered 8715, issued at Manila dated 1/30/09, and  who, being duly sworn, deposes and says, that he has rendered a full and complete accounting to  the  Auditor for the Philippine Islands for all funds and property for  which he has been accountable or responsible under the provisions of existing law.

(Signed)  "C. H. LAMB,
"Supt. I. P. C.

"Subscribed and  sworn to before  me at Manila, P.  L, this 11th day of March,  1911.

(Signed)  "CHAS. A. STILES, Notary Public.
"My commission expires Jan. 1st, 1913."

(Here appears seal of Chas. A. Stiles, notary public.)

"I hereby acknowledge receipt of duplicate copies of this affidavit, which  is  confirmed by an examination  of the records of this  date, of accounts-current and  property returns as  rendered and  received.
 "Manila, P. L, March 11, 1911.

(Signed)  "W. A.  RANDALL,
  "Acting Auditor.
  "By C. A. STILES.

"Note. - In the case of civil officers the proper disbursing officer will withhold final pay until the officer's copy of this certificate is presented, duly signed by the auditor."
(Signed in duplicate.)           
                     
"THIS  CERTIFICATE  MUST  BE HELD IN READINESS FOR PRESENTATION, IF CALLED FOR, UPON EMBARKATION."

"PHILIPPINE ISLANDS,
                    "City of Manila, ss:
 
  "Carroll H. Lamb, late superintendent  of Iwahig Penal Colony, states that he is the relator in the proceedings; that he has read  and is familiar with the  contents of each of the paragraphs of this petition, and that the statements made  herein, except the conclusions  of law and those quotations appearing as made by the Auditor for the Philippine Islands, are true and correct, and  that the said conclusions of law and the said  statements made to the relator's attorney by said auditor are  true to the best of relator's knowledge and belief.
  (Sgd.)   "C. H. LAMB, Relator.

"Sworn  and subscribed to before me this 18th day of March, A. D.  1912, by C. H. Lamb, who presented cedula No. F-32719, issued at  Manila on March 19, 1912. (Sgd.)  "V. DimaguilA, Notary Public.
   
  "My commission expires  December 31, 1912."
  (Notary's seal.)
 
  "PHILIPPINE ISLANDS,

    "City of Manila, ss:

  "Amzi B. Kelly, attorney for relator, states that he is familiar  with the contents of this  petition, and that the statements quoted from the  Insular Auditor, as herein written, were  made to  him by W. H. Phipps, the Auditor for the Philippine Islands; that the conclusions of law necessarily stated in this petition are the  result  of careful investigation and are true to the best of affiant's legal knowledge and belief; that the other statements made in this petition have been investigated  by affiant with much care and with all the power in his means, and that these statements are true to the best of his knowledge and belief.

(Sgd.)  "AMZI B. KELLY,
&"Attorney for relator. 

"Sworn and subscribed to before me, this  18th  day of March, A. D. 1912, by Amzi B. Kelly, who presented cedula No. F-418732, issued at Tacloban, Leyte, on  January 13, 1912."

(Sgd.)  "V. DIMAGUILA, Notary Public.
"My  commission  expires December  31, 1912."

            (Notary's seal.)

Upon the presentation of  the foregoing petition, the Supreme Court ordered the respondent to appear and show cause within a period of twenty-four hours, if possible, why the writ prayed for should not be granted.

The respondent appeared and filed a demurrer based upon the following grounds, to wit:

"1. That the court has no  jurisdiction to issue mandamus to the Auditor for the  Philippine Islands.

"2. That the complaint does not  state facts sufficient to constitute a cause of action."

Upon the issue thus presented by the complaint and the demurrer,  the cause was  duly .submitted  to the court. After a careful consideration of the facts contained in the petition and the law applicable thereto, the court,  on the 30th day  of March,  1912, directed  the  following order to be entered, sustaining in part the demurrer: 

"With  reference to  the  demurrer  interposed  by  the defendant  in  the  application for  a writ of mandamus, No. 7806, Carrol H. Lamb vs. W. H. Phipps, Insular Auditor, and reserving the right to  render  later a more extended judgment, the court said:

"'Two  reasons  are given  for this demurrer: one,  lack of jurisdiction of this court  to take  cognizance of the petitioner's application; and the other that  the facts stated in the application do not constitute a cause of action; and
   
" In view of the fact that the petitioner has not established in his application any facts other than that he  submitted his accounts to the defendant and that the latter has not yet approved them through risk or fear that a claim may be presented,  and that, even though these  facts may be sufficiently proved at the trial, in addition to being admitted in the demurrer, they would not furnish sufficient grounds for granting the writ of mandamus, the demurrer is sustained and the petitioner is authorized to amend his application within five days.  Messrs. Justices Carson and Trent dissent and Mr. Justice Trent reserves the right to submit later in writing his dissenting opinion.' "

  The above very brief order of the court was directed by reason of the fact that it was the last day of the session of the court for the January term of 1912, and for the further reason that no member of the court then had time to more fully state the reasons upon which said order was based. In view of the importance of the question presented,  it is deemed  advisable to more fully discuss  the law relating thereto.  It may be noted that the petitioner did not file an amended petition within the time mentioned in the above order.  The facts involved in the present case are stated in the petition.  The  materiality of the exhibits is not  quite clear.  It is believed that all of the material allegations of the petition which the relator intended to make, eliminating all purely  evidential and immaterial allegations, may be fairly stated as follows, to wit:
 
First, that the  relator had  been for  a period of four years the superintendent of the Iwahig Penal Colony.   (See paragraphs 1, 4 and 9 of the petition.)

Second, that the  relator has rendered an account for all property and funds of the Government which have come into his possession.   (See  paragraphs  3  and 8 of the petition.)
   
    Third ,that it  is the  legal duty of the  respondent as Auditor for the Philippine Islands to issue an Auditor's certificate (clearance)  to any employee or agent of the Government  who  has  left the service, when the records of the office of the Auditor show that the accounts of said employee or agent are balanced and that said employee or agent has properly rendered an account for all Government property and funds which have come into his possession during the time  of said  employment.   (See  paragraph  3  of the petition.)

  MEANING OF AUDITOR'S CERTIFICATE OR CLEARANCE.

  Before discussing the rules of  law controlling in the present case, a word of explanation of what is meant by the Auditor's certificate (clearance) may be of assistance to a better understanding of the purpose of the present petition. Act No. 1605 of the Philippine Commission provides that no bonded officer or bonded employee of the Insular Government, or of any provincial or municipal government in the Philippine Islands, or of the city of Manila, whether in the actual service of such Government or separated therefrom, shall leave or attempt to leave the Philippine Islands  without first securing a certificate (clearance) from the Auditor showing that his accounts with the Government of which he is or was such bonded officer or bonded employee  have been finally settled by said Auditor.  Said Act further provides that any such officer or employee violating any of the provisions of  this  Act  shall, on  conviction thereof, be punished by imprisonment for not exceeding six months or by a fine of not more than P1,000 or both, in the discretion of the court.
 
  During the argument of the present cause, the attorney for the relator stated that he could not leave or attempt to leave the Philippine Islands, without rendering himself liable to a  criminal prosecution under and by virtue of said Act (No. 1605), without  having the Auditor's certificate or clearance.  It will be noted upon reading the petition that there is no word or intimation therein indicating in any way (except the allegation that the relator  had been the custodian of Government property and  funds) that he was a bonded officer.  Unless he was a bonded officer or employee of the Government, said Act does not apply to him and there is no necessity for a  clearance.  Said Act (No. 1605)  only applies tobonded officers or employees.  It may be assumed, however, for the purposes of the present case, that the relator was a bonded officer or employee of the Philippine   Government and that in the absence of the Auditor's certificate or clearance he might be subjected to a criminal action under said Act (No.  1605) if  he attempted to leave the Philippine Islands without said  certificate.

DUTY OP THE AUDITOR IN APPROVING ACCOUNTS.

The relator alleges that he has rendered an account for all property and funds of the Government which came into his possession, and  concludes that he is therefore entitled to an Auditor's, certificate or  clearance.   Is the mere rendition of accounts  of  Government property and funds by an employee all that is  necessary to entitle such employee to his clearance?   Is the Auditor, who is responsible for the proper  disposition   of Government property  and funds, obliged to accept a mere paper balance?  Is the Auditor not to be given an  opportunity to count the cash (funds)  as well as to see that the property of the Government actually exists which had been in the possession or under the control of such employee?   Is the Auditor not to be given an opportunity to make an  actual inspection  for  the purpose  of satisfying his own  mind that the paper balance conforms with the actual  facts?   Experience has taught auditors as well  as business men generally  that mere paper balances are not always reliable. The actual funds and property are not always visible, in such balances.
   
  It is confidently contended that the Auditor is not obliged under the law to accept a mere paper accounting as final and conclusive as to the real responsibility of Government employees and to issue a clearance upon that alone.  He may, it is true, if he is satisfied; but certainly, he may, if he so desires and if he has any doubt about the correctness  of such accounts, make an actual examination of the funds and property represented by such  paper accounts or balances. If, then, the Auditor  is  not  obliged to accept the  mere paper accounts or balances, when or within what time must he make his investigations and pass upon the accounts rendered?  Must he do so immediately?  The law does not so require.  In justice to all parties and especially for the best interests of the Government, he should verify the accounts rendered as soon as practicable.  In any event, the accounts must be verified and accepted or rejected before the lapse of three years.   (Sec.  29,  Act No.  1792.)   At least,  it would seem under said  Act  (Sec. 29, Act No. 1792) that after the lapse of three years the  accounts cannot  be reopened against an employee  or agent.  In the present case there is no allegation showing when the accounts were rendered.  The relator resigned from his position on the 31st day of December, 1911.   His resignation was accepted January 2, 1912.  Certainly, his final accounts were not rendered before that date.   In the present case, at least,  there seems to  have been no unreasonable or unnecessary  delay, and there is no allegation in  the petition to that effect. In fact the relator  alleged  that the respondent  had  already acted and had denied his claim (see paragraph  8 of petition) and gave what seems to be a good reason therefor.
 
  Whenever a duty is imposed upon a public official and an unnecessary and  unreasonable delay in the exercise of such duty occurs, if it is a clear duty imposed by law, the courts will intervene by the extraordinary legal remedy of mandamus to compel action.  If the duty is purely ministerial, the courts will  require specific action.  If the duty is purely discretionary, the courts  by  mandamus will require action only.  For example, if an inferior court, public official, or board should, for an unreasonable length of time, fail to decide a particular question to the great detriment of all the parties concerned, or a court should refuse to take  jurisdiction of a  cause when the law clearly gave it jurisdiction, mandamus will issue, in the first case to require a decision, and  in the second to  require that jurisdiction  be taken of the cause.   (De la Beckwith vs. Superior  Court, 146  Cal., 496; State vs. Judges of Fifth Circuit Court  of Appeals, 48 La. Ann., 672; Taylor vs.  Montcalm  Circuit Judge, 122 Mich., 692;  Kelsey vs. Church, 112 N. Y.  App. Div., 408; State vs.  Smith,  69 Ohio, 196; Ex Parte Connaway, 178 U. S., 421; In  re  Grossmayer, 177 U. S., 48; Rex vs.  Goodrich, 15 Q. B., 671; 69 Eng. Com. Law, 671; State vs. Foster, 106 La. Ann., 425.)  In the present case, however, the mandamus is not for the  purpose of compelling action only. It is presented for the purpose of requiring particular action on the part of the Auditor.  There is a  very wide distinction  between the  use  of the writ  of mandamus to compel action and its use to compel particular action on the part of a public official, board,  or officer upon whom particular duties  are imposed by law.  This difference will be discussed later.

LEGAL  DUTIES OF AUDITOR.

  As to the legal duties of the Auditor for the Philippine Islands, we find that they are generally prescribed by the laws of the Philippine Legislature.   (See Acts Nos. 90,  145, 215, 328, 909, 1402, and 1792.)  Those duties .which are not specifically and positively defined by such  laws are  prescribed by comparison with the duties of other officers which are well defined by law.   (See sec. 6, Act No. 1792.)

Generally, the duty of the Auditor for  the Philippine Islands shall be to examine, audit, and settle all accounts pertaining to the  revenues  and receipts from whatever source of the Insular Government, of  the city of Manila, of the  provinces, municipalities,  townships, settlements, or other governmental branches.  The jurisdiction of the Auditor for the Philippine  Islands is exclusive over accounts, whether of funds or property, and all vouchers  and records pertaining thereto.  His decision upon  such  accounts  is final and conclusive upon the executive branches of the Government except when an appeal  therefrom is taken by the aggrieved party or the head of the department concerned within one year.   Under the law of the Philippine Islands, the Auditor generally has like authority as  that conferred by law upon the several auditors  of the  States of the United States  and the Comptroller of the United  States Treasury.   (See  sec, 6, Act No. 1792.)   Sections 24 to 36 of Act No. 1792 provide in more or less detail a method of accounting for funds and property of the Philippine Government in its various branches and for the settlement of such accounts.  Section 29  provides  that  even after accounts have been settled, the Auditor, on account of fraud, collusion, error in calculation, or  newly discovered material evidence, or when  in  his judgment  the  interests of, the Government  may seem to require it,  is authorized within three years after the  original settlement, to reopen  any account previously settled by him or by a district auditor, and, after written notice to the person involved, and after a  reasonable  time for the  reply  or  appearance  of  said person, to certify thereon a new balance.
   
  The foregoing, in a most general way, points  out the duties of the Auditor for the Philippine Islands.   His duties may be restated briefly as follows: (a)  He  has exclusive jurisdiction to examine, audit, and settle all  accounts pertaining to the revenues and receipts from whatever source of the Insular Government, the city of Manila, the provinces, the municipalities,  the townships, the settlements, or any other governmental branch; and (b) his decisions are  final and  conclusive except when  an appeal is taken  therefrom within one year.  (Sees.  2, 6,  Act No. 1792.)  Section 36 of Act No. 1792 provides that when any person is aggrieved by the action  or decision of  the  Auditor in the settlement of his accounts or claims, that such person, within one year, may take an  appeal in writing  to  the  Governor-General, which appeal shall specifically set forth the particular action of the Auditor to which exception is taken, with the reasons and authorities relied upon for a reversal  of  the action or decision of the Auditor.  If the Governor-General  shall confirm the action of the Auditor, he  shall so endorse the appeal and transmit it to the Auditor  and the action shall thereupon be final and conclusive.   Should the Governor-General  refuse to sustain or  approve the action of the Auditor, he shall forthwith  transmit his  grounds  of  disapproval to the Secretary of War, together with the appeal and  papers necessary to a proper  understanding of the matter. The decision of the Secretary of War in such cases shall be final  and  conclusive.  To recapitulate then, we believe that the f ollowing propositions relating to the power and jurisdiction of the Auditor in auditing accounts for the different governmental entities of the Philippine Islands are true, to wit;

First, that the Auditor for the Philippine Islands has exclusive jurisdiction in the first instance to examine, audit, and settle all accounts pertaining to the revenues and receipts from whatever source of every governmental entity within the Philippine Islands.

Second, that his decision  or the result of his accounting upon such  revenues and receipts and accounts is final and conclusive upon all parties unless an appeal is taken within a period of one year.

Third, that the Governor-General of the Philippine Islands (See sec. 36, Act No. 1792)  is not possessed with power to revoke or alter or modify the results of accountings made by the Auditor without reference to the Secretary of War.

Fourth, that when an appeal is  taken to the Governor-General and the latter disapproves  of the accounting made by the Auditor, he must at once forward to the Secretary of War for final action the  matter in controversy.

If, then, the Auditor for the Philippine  Islands is possessed with exclusive and final jurisdiction to audit all accounts of the Philippine Government, and if his judgment is final unless an appeal therefrom is taken and finally reversed by the Secretary of War, it would seem to be a reasonable conclusion to hold that he has at least a certain discretion in arriving at an uncontrolled and independent conclusion as to any accountability of any accountable employee or official of the Philippine  Government.

The question which we are now discussing is not a new. one.  Very early in the history of  the American governments, both state and national, it was found to be very necessary to have some person or official of the government, who was absolutely free from control, to finally pass upon the legality of all governmental accounts.   His freedom of action and his right to exercise his own discretion, untrammeled and uncontrolled, has been the basis of many a judicial, executive, and administrative decision.   As early as the administration of President Jackson (1829-1837)  and even before we find that this question was up for decision. In 1835 Mr. Jackson, then President of the United States, was asked to overrule a decision of the Comptroller of the United States.  He declined so to do and made the following brief  reply to said request:
   
  "The decision of the second Comptroller  is final, over whose decisions the President has no power except by removal."

During the  administration of Mr.  Polk, a  request was made of him to interfere with the adjustment of a claim which had been presented to and passed upon  by the Comptroller of the United States,  He declined to  interfere and in so doing made the following observation:

"I decline to interfere on the ground that  Congress  has expressly given the  authority to settle claims to the  accounting  officers *   *  *  and that I have no right to control these officers in the performance of their duties." (Aug. 9, 1845.)

As  early as  1789 an Act was passed by the Congress of the United States providing that the auditing and revision of accounts should be made by officers holding their, appointments independent of heads of the  departments and wholly unconnected with the  disbursement of  the public money. The Congress of the United States, in said Act, deemed it essential to the judicious and economical administration of the  financial affairs of the government, that the officers who directed  the expenditures should  not also  judge of their legality.   Hence, we have, from the very beginning of  the Government of the United States, laws which provided  for the  adjustment of accounts, by accounting officers, whose decisions were final and who held their appointment independent of the heads of the departments and wholly unconnected with the disbursements of the public funds.
   
  We find in Senate Document No. 6, at page 5 of the second session of the Twenty-third Congress of the United States, the following statement, which indicates the view of the Senate of the United States tipon the question which we are discussing;
 
  "No effectual check can ever exist in any case where the same officer authorizes the expenditure and then audits, or controls the audit of the accounts."

Auditors and comptrollers,  as  accounting officers, are generally regarded as quasi-official officers.  They perform mere ministerial duties only in cases where the  sum due is conclusively fixed by law or pursuant to law.  Except in such cases, the action of the accounting officers upon claims coming before them for  settlement and certification of balances found by them  to be due, is not ministerial merely but judicial and discretionary.   This is shown not only by the express language of the statutes generally,  but by the rulings of the Supreme Court of the United States. In the case of Watkins vs. United States (9 Wall., 759, 764) Mr. Justice Clifford, delivering the opinion of the court, said:
   
  "Vouchers are required by the very words of  the Act of Congress   *  *  *.  Without  such  evidences before the accounting officers there could  not be any intelligent  scrutiny of the claim nor any decision which would be  satisfactory to the claimant or to the public."
 
  See also the decision of the Supreme Court of the United States in  the case of Decatur vs. Paulding (14  Pet.,  497) (1840), where Mr. Chief Justice Taney, in delivering the opinion of the court upon the question of the right of the courts to issue mandamus to control the action of an executive officer said:

"In general, the official duties of the head of  one of the executive departments, whether imposed by Act of Congress or by resolution, are not mere ministerial duties.  The  head of an executive department of the government, in the administration of the various and important concerns of his office, is  continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress,  under which he is from time to time required to act.  If he doubts, he has a right to call on the attorney-general to assist him with his counsel; and it would be difficult to imagine why a legal adviser was provided by law for the  heads of departments, as well as for  the  President,  unless their duties were regarded  as executive  in  which judgment and discretion  were to  be exercised."  (Kendall vs. U. S., 12 Pet., 524.)
   
  The statutes of the United States require the Comptroller to exercise his judgment upon the legality, not only of provisions of law and resolutions of Congress providing for the payment of money, but they also provide the means of procuring testimony upon which he may act.  The statutes also provide him with counsel to enlighten him  if he should deem it proper to extend his investigation beyond the papers submitted with the claim or account.  (See Rev. Stat. of U. S., sees. 184,187, 269, 277.)   He (the Auditor or, Comptroller) is required to certify balances due in favor of or against the government.   To certify  is to make  certain.   To make a certificate  is to exercise judgment and discretion.  He is required to render decisions upon the legality of claims, and his conclusions are not mere opinions.  If they were mere opinions, they would not be final.  In rendering decisions, judgment and discretion must necessarily be exercised.   A decision  is by the law presumed to be made  after an  intelligent scrutiny of  all of the facts has been made.  In the discharge of his duty (Auditor or Comptroller's) he is judge not only of the law  but of the facts;  and he would not be justified  in accepting the views, opinions, findings or rulings of any other officer  of the government upon the claims or vouchers admitted.  In the performance of his duties, the Auditor is not subject to the jurisdiction of any officer of the executive branch of the government nor to  that of any court of the judicial branch.  He is not a mere machine to register or blindly execute  the  opinions or acts of other officers in matters which pertain, by the laws of the fiscal system of the governmant, by well defined public policy,  and by long practice, to the jurisdiction of  the accounting officer - a jurisdiction which it is his duty to maintain, even in cases in which its existence may be doubtful.  (U. S. vs. Arredondo et al., 6 Pet., 689,  729.)  The legislative department of the government would not have made the decisions of the Auditor final, unless an appeal is taken therefrom, without intending to give to the Auditor an uncontrollable discretion in fully examining and scrutinizing every account presented against the Government.  The power to certify a balance, for a like reason, includes the authority to review and decide all questions of law and fact, and to use all sources of information for that purpose.  A settlement of an account and a certificate of a balance which cannot go to the sources of evidence  and examine all questions of law and fact would be practically no examination.
 
  In the Case of Longwill vs. United States  (17 Court of Claims, 291) it was said:

    "The accounting officers of the treasury are in duty bound to scrutinize claims  and accounts with great  care, as is their custom, and  it is the undoubted right of those who have authority to  decide thereon to reject in  whole or in part, as  their  judgment dictates, all  those claims  which they have reasonable cause to suspect are tainted with fraud or to which they believe there may be substantial defects in law or as to the validity of which they are in doubt."

  In the case of the Board of Liquidation et al. vs. McComb (92 U. S., 541) the court said:
 
"The objections  to  proceeding  against state officers by mandamus or injunction are:  First, that it is, in fact, proceeding against the State itself; and, second,  that  it interferes with the official discretion vested in  the officers. It is conceded  that neither of  these things can be done. A State, without its consent, cannot be sued by  an individual, and a court cannot substitute its own  discretion for that of executive officers in matters belonging to the proper jurisdiction of  the  latter."

For the courts to require an auditor to allow or disallow a claim against or in favor of the Government would be to substitute the courts as the auditing officers of the Government.  Such a result was not contemplated by a law, which conferred upon another department of the Government the final and exclusive jurisdiction to consider claims.   (Kendall vs. U. S., 12 Pet., 524; The Borough of Uniontown vs. The Commonwealth of Pennsylvania, 34 Pa., 293; Habersham et al. vs. Savannah etc. Canal Co., 26 Ga., 665; State of Iowa etc. vs. County Judge etc., 7 Iowa, 186.)
   
  Under  the statutes of the United States the comptroller is by express statute authorized to examine accounts and to certify balances thereon.  The exercise of this power necessarily involves  the exercise of judicial discretion.  Judicial action cannot be subject to any control or direction, except by law, or by an appeal.   It is independent  of all control except by law.   The authority so given by statute should be exercised with that untrammeled independence of judgment which is essential to its proper exercise.
 
In  the  case of the United States vs.  Lynch  (137 U. S., 280), a petition was presented in which it was alleged - 

"That the respondents  (the comptrollers)  have refused, and still do continue to refuse, to pay the petitioner, or to credit him with, the sum of $288.60, that being the amount remaining unpaid on the said travel under the  said Act of Congress." To this petition the  respondents  (the comptrollers)  demurred upon the following ground: 

"That mandamus will not lie against an  officer  of  the Treasury  Department for refusal to allow and pay a claim against the United  States, for, however obviously without legal justification his refusal may be, a mandamus against him to compel such allowance and payment is  none  the less in effect a suit against the United States." 

In passing upon  the right of the relator to the writ of mandamus, Mr. Chief Justice Fuller, speaking for the court and citing the case of Decatur vs. Paulding (14 Pet, 497), supra, said:

"It is now argued that the duty  of the Fourth Auditor and of the Second  Comptroller under the last clause of section 2 of the Act of 1835, and the decision of this court in relation to it, was merely ministerial, and that by the disallowance of relator's claim for mileage these officers exercised  a discretion which they did  not possess; that this was  an invalid exercise of an  authority  under the United States; and that hence the validity of the authority was drawn in question.  *   *   *

"We think that the authority of the second comptroller and the fourth auditor  is not thus denied here, nor the validity of that  authority questioned, but  that what his claim is that in the exercise of a valid authority, the Auditor and Comptroller  erred in respect to an allowance, in view of the decision of this court in another case.

"The writ of error must be dismissed and it is so ordered."

  In the case of Riverside Oil Co. vs. Hitchcock  (190 U. S., 316), the relator  presented a  petition in the Supreme Court of the District of Columbia asking for a writ of  mandamus to compel the respondent, the Secretary of the Interior," to vacate a certain order made  by him in relation  to the dis-position of public lands.   Mr. Justice Peckham,  speaking for the court  and citing  again the  case of Decatur vs. Paulding, supra,  said:

"That the decision of the questions presented  to the Secretary of the Interior was no merely formal or  ministerial act is shown beyond  the necessity of argument by a perusal of the foregoing statements of the issues presented by this record for the decision  of the Secretary.  Whether he decided right or wrong is not the question.  Having jurisdiction to decide  at all, he had necessarily jurisdiction, and it was his duty to decide as  he thought the law was, and the courts have  no  power whatever under those circumstances to review his determination by mandamus.

In this case the Supreme  Court of the District of Columbia refused to issue  the  mandamus, and the  Supreme Court of the United States affirmed that  decision.

The writ of mandamus cannot be  used  to control the judgment and  discretion of an officer in  the decision of a matter which  the law gave him the power  and imposed upon him the duty to decide for himself.
   
  In the case of Bates and Guild Co.  vs. Payne (194 U. S., 105), an application was made for the writ of mandamus to compel Mr. Payne, then Postmaster-General  of the United States, to receive and transmit through the mails,  as matter of the second class, a certain periodical known as "Masters of  Music."   Mr. Justice Brown,  speaking  for the  court, said:  .   "

"That where the  decision of questions of  fact is committed by Congress  to the judgment  and discretion  of the head of  a  department, his decision  thereon  is conclusive unless the law allows an appeal"

  With reference to the power of Comptrollers  of the Treasury of the  United  States,  it may be  said that they are by  express statute authorized to examine accounts and to certify  balances  thereon,   (U.. S. Rev.  Stat., sec.  269.) Tfre exercise of this  power  involves  judicial discretion. Judicial action cannot be subject to any control or direction except by law and  continue to be judicial action.   It is independent  of all  control except by law or  otherwise it cannot be judicial.   The authority so  given should be exercised with that  untrammeled  independence of  judgment which is absolutely essential to its proper exercise.
 
  It will be noted that wjiat has been said with  reference to the independence of the Comptroller of the United  States Treasury is  also  applicable to the Auditor for the Philippine Islands for the  reason that section 6 of Act  No. 1792 provides that he shall have like authority as that conferred by law upon the several auditors of the states of the United States and the  Comptroller of the United States Treasury. We have hitherto cited authority from the courts of the United States.  It will be interesting  to know  what the authors and  law  writers have said upon this  question.

Dr. James L. High, one of the clearest  American  law writers, in  his valuable  work  on "Extraordinary  Legal Remedies"  (3rd ed.) in  section 102,  after  discussing the     right of the courts to coerce  the  performance of purely ministerial duties, says: 

"Where, however, auditing officers entrusted by law with the duty of passing upon and  determining the validity of claims against the state, are vested with powers of discretionary nature as to the performance  of their duties, a  different rule from that above stated prevails.  In such cases the fundamental principle denying relief by mandamus to control the exercise  of  official  discretion applies,  and the officers  having exercised their judgment and decided adversely to a claimant, mandamus will not lie to control their decision or  to compel them to audit  and allow a rejected  claim.   The remedy, if any, for such a  grievance, must be sought at the hands of the legislature, and not of the  courts.   (Auditorial  Board  vs.  Aries, 15  Tex,,  72; Auditorial Board  vs. Hendrick, 20 Tex., 60; Towle vs. State, 3 Fla., 202; State vs. Doyle, 38 Wis., 92; People vs. Auditor of Colorado, 2 Colo., 97; State vs. Oliver, 116  Mo., 188; Burton vs. Furman, 115 N. C, 106; Wailes vs.  Smith, 76 Md., 469; State vs. Babcock, 22 Neb., 38;  State vs. Boyd, 36 Neb., 60.)   Especially will  relief by mandamus be refused in  such  cases when the party aggrieved has a plain and  adequate  remedy  by appeal from the refusal of the auditing officer to allow his claim.  And when  a state comptroller is vested with certain discretionary  powers in the adjusting and settlement of demands against the state, he cannot be  compelled  to  issue his warrant  or liquidate said  claim for the  payment of a particular sum,  nor  will the writ go te compel an officer to audit a claim unless it is  clearly his  duty so to do.   (Wailes vs.  Smith,  76 Md., 469; Drew vs. Russel, 47 Vt., 250,)"

Mr.  Spelling, in his work  on "Injunctions  and Other Extraordinary Remedies," in a very learned and extensive discussion of the questions  now before us  says that mandamus will not lie in any matter requiring the exercise of official judgment, or resting in the  sound discretion of the person to whom a duty is confided by law, either to control the exercise of that discretion or to determine the decision which shall be finally given, but only to set him in motion and compel him to exercise his function according to some discretion when he has refused or neglected to act  at all, (United States vs. Seaman, 17 How.,  225; People vs. Fairchild,  67 N. Y.,  334;  State vs. Board of  Liquidators, 29 La. Ann., 264; Freeman vs. Selectmen of New Haven, 34 Conn., 406; Rutter vs. State,  38 Ohio,  496; United  States vs. Commissioner, 5 Wall., 563; People vs. Board  of Commissioners of Cook County, 176 111., 576; People vs. Maher, 141 N. Y., 330; Boyne vs. Ryan, 100 Cal., 265.)  And of course, where another  remedy exists,  as under  the express statutes of the Philippine  Islands, mandamus  will not be granted.

Mr.  Merrill,  in his work on "Mandamus," in discussing the same question, says:  [sec. 32.]

"The writ lies to make a body or officer  charged with a duty, involving judgment or discretion, to take action in the matter.  When a subordinate body is  vested with power to determine a question of fact, the duty is judicial and though it can  be compelled by mandamus to  determine the fact it can not be directed to  decide in a particular way, however clearly it may be made to appear what that decision  ought to be.  A court will be ordered to proceed to judgment, but it will not be instructed  to render a  particular judgment. *  *   * When a decision has been  reached in a matter involving discretion, a writ of mandamus will not  lie to review or correct it, no matter how erroneous it may be."

Mr.  Arthur L. Sanborn,  judge of the United  States District Court for the western district  of Wisconsin, in his article on  "Mandamus," published in  volume 26 of the Cyclopedia of Law and Procedure (Cyc), in discussing the right of the courts to issue mandamus against  an  auditor, says:

"Where a state auditor  in  the  discharge of his duties has a discretion to exercise,  as for instance, in the allowance or rejection of a claim against the state, his  decision cannot be controlled by mandamus  *  *  *.   Where there is another adequate remedy, as for instance, where the right of appeal is given to a claimant whose  claim has been disallowed in whole or in part by  the auditor,  the writ will not lie."  (26  Cyc, 237.)

In speaking of the remedy by mandamus against the comptroller, Mr.  Sanborn says: [26 Cyc, 239.]

"But the  writ will not lie where its effect would be to interfere with the comptroller in matters  requiring  the exercise  of judgment and discretion on his part.  Thus, it is held that a  state comptroller cannot be compelled to audit claims against  the state in any particular way or for any particular amount  In the same way, where the duty of the comptroller  to  perform  the  act  in question  is not clear, or where there is another adequate remedy at law, the writ will not  lie.   (Patty  vs.  Colgan,  97  Cal., 251;  People vs. Roberts,  163 N.Y., 70.)"

Not only  has it been the  uniform doctrine maintained by the authorities of the Government of the  United  States and the  law writers that those who are charged with the responsibility of auditing accounts in  favor of and against the government must be  left absolutely free and  untrammeled, but the  state governments of  the United States as well  have established the same doctrine.  ih the case of Holliday vs. Henderson  (67 Ind., 103) the court said.;

"Where a  state auditor in the discharge of his duties has a discretion to exercise, as for instance, in the allowance or rejection of a claim against the state, his decision cannot be controlled by mandamus, especially after the auditor has already acted upon the matter."   [26 Cyc, 237.]

See also the  following  cases: (Danley vs. Whiteley, 14 Ark.,  687; People vs, Colorado Territorial Auditor, 2 Colo., 97; State vs. Thompson, 41 Mo., 13; State vs. Barnes, 25 Fla., 298 (23 Am. St. Rep,, 516); Wailes vs. Smith, 76 Md., 469; Lewright vs. Love, 95 Tex., 157; People vs. Adam,  3 Mich., 427; Burton vs. Furman, 115 N. C, 166; County of San Luis Obispo vs. Gage, 139 CaL, 398; People vs. Roberts, 163 N. Y., 70; Rutgers College vs. Morgan, 71 N. J. L., 663; State vs. Nolan, 8 Lea, 663; People vs. Attorney-General, 41 Mich., 728;  Thompson vs. Watson,  48 Ohio, 552;  Ewbank vs. Turner,  134 N. C, 77; State Board of Dental Examiners vs.. People, 123 111., 227; State vs. Slocum, 34 Neb., 368,)
   
  An examination of the decisions of the Supreme Court of the Philippine Islands will show that it has  followed the general rule above noted with reference to, the issuance of mandamus.  The  general  rule  adopted by  the  Supreme Court of the Philippine Islands is that mandamus will never be issued (a) to control  discretion, nor (6) when another adequate remedy  exists.   (See  Knight vs. McMicking,  2 Phil. Rep., 698; Manotoc vs. McMicking, 10 Phil. Rep., 119; Cruz  Herrera vs. McMicking, 14 Phil.  Rep., 641;  Gonzalez y Salazar vs.. The Board of Pharmacy, 20 Phil. Rep., 367.) In this latter case, it was said:

  "It is essential to the issuance of a writ of mandamus that the plaintiff have a clear legal right to the thing demanded and it must be the imperative duty of the defendant to perform  the act required.  It never issues in doubtful  cases. While it may not be necessary that the duty be absolutely express,  it is necessary that it should  be clear.  The writ will not issue to compel an official to do anything which it is not his duty to  do or which it is his duty not to do, or to give to the applicant anything to which he is not entitled by law.   The  writ neither confers powers nor imposes duties.   It is simply a command to exercise a power already possessed and to perform a duty already imposed.  (Calvo vs. Gutierrez, 4 Phil. Rep., 203.)"

The writ of mandamus  cannot be used to control  the discretion of a judge or to compel him to decide a case or a motion pending before him in a  particular way. He must be left to exercise the discretion which the law imposes upon him;  (Merchant vs. Rosario, 4 Phil. Rep., 316; Macke et al. vs.. Camps, 5 Phil. Rep., 185; Debrunner vs. Jaramillo, 12 Phil. Rep., 316.)   

DISCRETION DEFINED.

Discretion may be denned as  "the act or the liberty to decide according to the principles of justice and one's  ideas of what is right and proper under the circumstances, without willfulness or favor,"   (Standard Dictionary, ed. 1911.) Mr. Webster defines  discretion as the  "freedom  to  act according to one's own judgment; unrestrained exercise of choice or will."

Mr. Black in his valuable law dictionary says:

"Discretion, when applied to public functionaries, means a power or  right conferred upon  them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.   * *   *

"Lord Coke defined discretion to be 'discernere per legem quid sit justum.'"
   
  Mr. Bouvier defines discretion as follows:

"That part of the judicial function which decides questions arising in the trial of a  cause, according to the particular circumstances of each case, and as to which the judgment of the  court  is uncontrolled by fixed rules of law.  The power exercised by courts to determine questions to which no  strict law is applicable but which, from their nature, and the circumstances of the  case, are controlled by  the personal judgment of the court."

Judge Slanborn, in his article on mandamus (26 Cyc, 161) defines discretion, when applied to  public functionaries, as the power or right conferred upon them by law  acting officially under certain circumstances, according to the dictates "of their own judgment or conscience and not controlled by  the judgment or  conscience of  others.  (Farrelly  vs. Cole, 60 Kan., 356, 44 L. R,  A., 464; State vs. Hultz, 106 Mo., 41; Oneida Common Pleas vs. People, 18 Wend., 79; Rio Grande County vs. Lewis, 28 Colo., 378.)

MINISTERIAL DUTY DEFINED.

A purely ministerial act, in contradistinction to a discretional act, is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without, regard to or the exercise of his own judgment  upon the propriety or impropriety of the act done.  (Ex  parte Batesville etc. Ry. Co., 39 Ark., 82, 85; American Casualty Ins. Co. vs. Fyler, 60 Conn., 448, 25 Am. St. Rep., 337; Gray vs. State, 72 Ind., 567; Flournoy vs. Jeffersonville, 79 Am. Dec, 468; State vs. Cook, 174 Mo., 100; Marcum vs. Lincoln Co. etc., 42 W. Va., 263, 86 L. R. A., 296.)  A  ministerial act is one as to which nothing is left  to the discretion of the person who must perform.  It is  a simple, definite duty arising under conditions  admitted  or  proved to exist and  imposed by  law. (Sullivan vs. Shanklin, 63 Cal., 247; Mississippi vs. Johnson, 4 Wall. (U. S.), 475.)  It is a precise act accurately marked out, enjoined upon particular  officers for a particular purpose.   (Bassett vs.  Atwater, 65 Conn., 355,  363, 82 L,. R. A., 575.)  If  the law imposes a duty upon a public officer and gives him the right to. decide how or when the duty shall be performed, the duty is discretionary and not ministerial.  The duty is  ministerial only when the discharge of the same requires  neither the exercise of official discretion nor judgment.   (Henkel vs.  Millard, 97 Md., 24.)

ANOTHER ADEQUATE REMEDY DEFINED.

As a general rule it  may be said  that  by the phrase "another  adequate remedy" is meant  one specifically provided by  law.   If the remedy is  specifically  provided by law, it is presumed to be  adequate.   We cannot presume that a remedy expressly provided by the legislative department of the government is not adequate.  If, perchance, and in fact it is not adequate, it is the duty of the legislative department and not of the judicial department to correct it.

Under the law the decision of the Auditor is final unless an  appeal is taken  within  one year.   The Auditor is the chief or director of one of the executive  branches of the government.  The appeal permitted is to the head of that branch of the government  (first to the Governor-General and second to the Secretary of War).

The  right to appeal from  the decision  of an offices or court to which a particular matter is specifically referred is purely statutory.   If the legislative department of the government by statute has not given the right of appeal, such right  does not exist.  This court said in the case  of Pavon vs. Telephone and Telegraph Co. (9 Phil. Rep., 247) that -

"The  right to appeal is and always has been statutory, and does not exist in common law.  It is a remedy which the legislature may in its discretion grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by  plain implication provides for an appeal from a judgment of a  court  of inferior jurisdiction,  none can be  taken."  (Resolution  of Supreme Court, Nov. 25, 1907; Aragon vs. Araullo, 11 Phil. Rep.,  7; Sullivan vs. Haug, 82 Mich., 548, 555.)

Under the law in cases like the present, the aggrieved party has the right to appeal.  He did not take advantage of that  right, nor has he exhausted the ordinary remedy afforded him by express law.  He is not entitled to this extraordinary remedy until he has at least exhausted the ordinary remedies afforded him by law.

When a plain, adequate and speedy remedy is afforded by and within  the executive department of the government, the courts will  not interfere until at least that remedy  has been exhausted.   (Jao Igco vs. Shuster, 10 Phil Rep., 448; Ekiu vs. U. S., 142 U. S., 651; U. S. vs. Sing Tuck, 194 U. S., 161; U. S. vs. Ju Toy, 198 U. S., 253;  Chiu Yow  vs. U. S., 28 Sup. Ct. Rep., 201.)   The administrative remedies afforded by law must first be exhausted  before resort can be had to the courts, especially when the  administrative  remedies are by law exclusive  and final.  Some matters and some questions are by law delegated entirely and  absolutely  to the discretion of particular branches of the executive department of the government.  When the law confers exclusive and final  jurisdiction upon the executive departments of the government to dispose of particular questions, their judgments or the judgment of that particular department  are no more reviewable by the courts than  the final judgment or decisions of the courts are subject to be reviewed and modified by them.

Our attention has been called  to what appears to be a typographical error in the wording of section 222 of Act No. 190.  That section reads in part  as follows:

"When the complaint  in an action in a Court of First Instance alleges  that any inferior tribunal,  corporation, board, or person unlawfully neglects the performance of an act which the law specially enjoins as a duty resulting from an office, trust,  or  station  *  *  *  and the court, on trial, finds the allegations of the complaint to be true, it may,  if there is no other plain, speedy and adequate remedy in the ordinary courts of law,  *  *  *."

It is asserted that the phrase "courts of law" should read "course of law."  Many  of the provisions of said Act No. 190 were copied  verbatim from the Code  of  Civil Procedure of California.  Section 222 of Act No. 190 was taken from section 1085 of the California Code of Civil Procedure. The section of the California Code reads "course of law," instead of "courts  of law."   We believe that  a mistake or  error has been  made in  the  printing of said section. We believe that it was the intention of the legislative department of the government to follow  exactly the provision of the California Code and that  they intended to use the phrase "course of law" and  not  "courts of law."  It will be  noted in section 226, the section  relating to the writ of prohibition, the  legislature used the phrase "course of law."  An examination of the Spanish translation of said section  (222) more clearly indicates  what the  legislative department of the government intended.  In  Spanish the other remedy is  not  limited to  the  ordinary "courts  of law."  We are permitted under  Act  No. 63  as amended by Act No. 1788 to refer to the Spanish text, for the purpose of explaining  the English text.  Act No.  1788 provides:

"In the construction of all Acts or laws which may be enacted by the  Philippine Legislature,  the  English text shall govern,  except that in obvious  cases of ambiguity,        omission, or mistake the Spanish text may be consulted to explain the English text."

We cannot believe that the legislature intended to limit the jurisdiction of this  court in  mandamus to the  cases where there was ho other adequate and speedy remedy in the ordinary courts of Jaw.   It is our duty, therefore, to give the statute a sensible construction; such as will  effectuate the legislative intention and, if possible, avoid an injustice or an absurd conclusion  (Lau Ow Bew vs. U. S., 144  U. S., 47,  59).  Clerical errors  or misprints, which, if uncorrected,  would render the statute  unmeaning or nonsensical or would defeat or impair its intended operation, will  not vitiate the  act; they will be corrected by the  court and the statute read as amended, provided the true meaning is obvious, and the real  meaning of the legislature is apparent on  the  face of  the  whole  enactment.   (Black on Interpretation of Laws, p. 77; Lancaster vs. Frey,  128 Pa., 593; Lancaster County vs. City of Lancaster, 160 Pa.,  411.)

Since writing the foregoing we have received a very recent (March 11, 1912)  decision  of the Supreme Court of the United States, upon the question which we have been discussing.  Again the doctrine announced in the case of Decatur vs. Paulding  (14 Peters,  497) has been confirmed.   In this decision (U.  S. ex  rel. Ness vs. Fisher, United States Supreme Court's Advance Sheets, No. 10, p.  356 [March 11, 1912]), the  question was  whether mandamus would lie against the Secretary of the Interior, for the purpose of controlling his decisions after  he had rejected the relator's claim or application. The supreme  court, speaking through Mr.  Justice Van Devanter, said:

"So, at the outset we are confronted with the question, not whether the decision of the  Secretary was right or wrong, but whether a decision of that officer, made in the discharge of a duty imposed by law, and involving the exercise of judgment and discretion, may be reviewed by mandamus and he be compelled to retract it, and to give effect to another not his own, and not having  his approval.   The question is not new  but has been often considered by this court, and uniformly answered in the negative.   (Decatur vs. Paulding, 14 Pet., 497, 515, 10 L. ed., 559, 568; United States ex rel. Tucker vs. Seaman, 17 How., 225,  230, 15 L. ed., 226, 227; Gaines vs.  Thompson, 7 Wall., 347, 19 L. ed., 62; Litchfield vs.  Register  (Litchfield vs. Richards)  9 Wall., 575, 19 L. ed., 681; United States vs. Schurz,  102 U. S., 378, 26 L. ed., 167; United States  ex rel Dunlap  vs. Black,  128 U. S., 40, 48, 32 L. ed., 354, 357, 9 Sup. Ct. Rep., 12; United States ex rel. Riverside Oil Co. vs. Hitchcock, 190 U. S., 316, 324, 47 L. ed., 1074, 1078,  23  Sup.  Ct.  Rep., 698.)  Original discussion being foreclosed by these cases, we will merely quote from two of them to illustrate the reasoning upon which they proceed.  In the Decatur case, Decatur vs. Paulding [supra], it was held that mandamus could not be awarded to compel the head of  one of the executive  departments to allow a claim, under one construction  of a resolution of Congress, which he had disallowed  under another construction, the court saying: 'The  duty required by the resolution was to be performed by him as the head of one of the executive departments  of the government, in the ordinary discharge of his official duties. In general, such duties, whether imposed by Act of Congress or  by resolution,  are not mere ministerial duties.  The head of an executive department of the  government, in the administration of the various and important concerns of his office, is continually  required to exercise judgment and  discretion.  He must exercise his judgment in  expounding the laws  and resolutions of  Congress, under which he is from time to time required to act. *  *  *  If a suit should  come before this  court which involved the construction of any  of these laws, the court certainly would  not be bound to adopt the construction given by the  head  of a department.  And if they supposed his construction to be wrong, they  would,  of  course,  so  pronounce their judgment.  But their judgment upon the construction of a law must be given in a case in  which  they have jurisdiction, and in which it is their duty to interpret the Act of Congress in  order to ascertain the rights of the parties in the cause before them.   The court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment in any case where the law authorized him to  exercise discretion or judgment.  Nor can it by mandamus act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care,  in the ordinary discharge of his  official duties.   *  *  *  The  interference of the courts  with the performance of the ordinary duties of the executive departments of the government would  be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given to them.'  And in the Riverside Oil Co. case (U. S. ex rel  Riverside Oil Co. 190 U. S., 316)  where it was sought by mandamus to compel the Secretary of the Interior  to depart from  a decision  of his to the effect that a forest reserve lieu-land selection must be accompanied by an affidavit that the selected land was non-mineral  in character and unoccupied, it was held that his judgment and discretion could not be thus  controlled, it being  said; 'Congress has constituted the Land Department, under the supervision and control of the Secretary of the Interior, a  special tribunal with judicial functions, to .which is confided the execution of the laws which regulate the purchase, selling, and care and disposition of the public lands.  *  *  *  Whether he decided right or wrong is not the question.  Having jurisdiction to decide at all, he had necessarily jurisdiction, and it was his duty, to decide as he thought the law was, and the courts have no power whatever under those  circumstances to review his determination by mandamus or injunction.  The  court has no general  supervisory power over the officers of the Land Department by which to control their decisions upon questions within their jurisdiction.  If this writ were granted we would require the Secretary of the Interior to repudiate and disaffirm a decision which he regarded it his  duty to make in the exercise of that judgment which is  reposed in him by law, and we should require him to come to a determination upon the issues involvled directly opposite to that  which he  had reached, and which the law conferred upon him the jurisdiction to make.  Mandamus has never  been regarded as the proper writ to control the judgment and discretion of an officer as to the decision of a matter which the law gave him the power and imposed upon him the duty to decide for himself.   The writ never can be used as a substitute for a writ of error.  Nor does the fact that no writ of error will  lie in such a case  as this, by which to review the judgment of the Secretary,  furnish any foundation for the claim that mandamus may therefore be awarded.  The responsibility, as well as the power, rests with the Secretary, uncontrolled by the courts.'

"The  relator seems to believe that Roberts  vs. United States (176 U.  S., 221; 44 L. ed., 443; 20 Sup. Ct. Rep., 376) and Garfield vs. United States (211 U. S.,  249; 53 L. ed., 168; 29  Sup. Ct. Rep., 62) in  some way qualify the rule so stated; but this is a mistaken belief.  Both cases expressly recognize that  rule, and neither discloses any  purpose  to qualify it.  In the  former the duty  directed to be performed was declared to be 'at once  plain, imperative, and entirely  ministerial.'  And in  the  latter,  the  writ was awarded to compel the respondent to erase and disregard a notation  which  he arbitrarily and unwarrantably had caused to be made upon a public record, and which beclouded the relator's right to an Indian allotment.

"We conclude that the decision of the respondent in the present case was not arbitrary  or merely ministerial, but made in  the exercise of judgment and  discretion conferred by law, and not controllable by mandamus,  and therefore that the  Court  of Appeals rightfully  directed that the petition be dismissed."

  After  a full  and careful consideration  of  the  facts and the law  applicable to the same, our  conclusions may be stated  as follows:
 
(a)  That the courts will take  jurisdiction of a  cause against the Auditor for the Philippine  Islands, in a proper case, to compel action  on his part, when by  reason of unnecessary delays in taking any action at all, persons have been deprived of a right and have no other adequate and speedy remedy in the ordinary course  of law.

(b)  That the right to allow or disallow a claim against the Government of the  Philippine Islands or any  of its branches is, by law, within the discretion  of the Auditor.

(c) That the  remedy, by  appeal, given under Act No. 1792, to the aggrieved party to the Governor-General and Secretary of War is another remedy and  is speedy and adequate and exclusive.
   
(d)  That when the final decision  of a question is by law left to the executive branch of the  government, the courts will not interfere until the remedy in that branch has been exhausted, and not always then.

We are of the opinion that the first ground of the demurrer should be overruled and that the second should be sustained;  and for the reason that the relator has not amended his petition within the time heretofore prescribed by this court, the same is hereby dismissed with  costs. So ordered.

Arellano, C. J., Torres and Mapa, JJ.,  concur.
  Carson, J., dissents.
 
 

---

DISSENTING:

TRENT, J.,
   
  I  dissent.   The importance of the questions involved in this case is recognized by all.   They go to the very foundation of government.   The personal  liberty of a citizen is at stake.  I therefore feel constrained to  set forth at some length my reasons for dissenting.
 
The respondent's demurrer is based  upon the following grounds:

"1. That the court has no jurisdiction to issue mandamus to the Auditor for the Philippine Islands.

"2. That the complaint does not state facts sufficient to constitute a cause of action."

I assert that the following propositions  are true and rest upon principle and authority:
   
"1.  Whether or not the writ  of mandamus will issue is not to be determined by the nature of the office of the person to  whom directed, but upon the nature of the duty sought to be enforced.  There is but one exception to this rule (in so  far as the civil officers and employees are concerned and this opinion deals with  these officers only) in this jurisdiction.
 
"2.  The Auditor for the Philippine Islands is an officer to whom, on legal  principles, the writ of mandamus may be directed.
 
"3.  Mandamus  will  lie to control the judgment  and discretion  of an  officer in the decision of a matter as  to which the law gives him the power and imposes  upon him the duty to decide, when the officer has grossly abused such discretion or openly misinterpreted the law.
 
"4.  If there be left  to the respondent any discretion, whether or not he should issue the clearance, it falls within the third proposition, and can be controlled by mandamus.
 
"5.  The remedy by appeal provided for in  Act No. 1792 is not  another plain, speedy, and adequate remedy.
 
"6. This court has committed a grave and serious error in amending the provisions of section 222, Act No. 190, so as to read 'in the ordinary course of law.' "

In the consideration of these  propositions, it is well to bear in mind the following provisions of law, to wit: section 222 of Act No. 190, and  section 1 of Act No. 1605.
   
  Section 222 of Act No. 190 reads:

"When the complaint in an action in a Court of First Instance alleges that any inferior tribunal,  corporation, board, or person unlawfully neglects the performance of an act which the law specially enjoins  as a duty resulting from an  office, trust,  or  station, or unlawfully  excludes  the plaintiff  from the use and enjoyment of  a right or office to which he is entitled  and from  which he is unlawfully precluded by such inferior tribunal, corporation, board, or person, and the court, on trial, finds the allegations of the complaint to be  true, it may, if there is no other plain, speedy, and adequate remedy in the ordinary courts of law, render a judgment granting a peremptory order against the  defendant, commanding him,  immediately after  the receipt of such order, or at some other specified time, to do the act required  to  be done to  protect the rights of  the plaintiff."

Section 1 of Act No. 1605 provides:

    "No bonded officer or bonded  employee of the Insular Government, or of any provincial or municipal government in the Philippine  Islands, or of the city of Manila, whether in the actual service of such government or separated therefrom, shall leave or attempt to leave the Philippine Islands without first securing a certificate from the Insular Auditor showing that his accounts  with  the government of which he is or was such bonded officer or bonded employee have been Anally settled by said  Auditor.  Every such officer or employee violating any of the provisions of this Act shall, on conviction thereof, be punished by imprisonment for  not exceeding six months, or by a fine of not more than  one thousand pesos, or both, in  the discretion of the court."

Section  515 of Act  No.  190 gives  this Supreme Court concurrent jurisdiction with Courts of  First Instance in mandamus proceedings.

In  determining whether  or not the writ of mandamus should issue,  the court must be governed by the nature of the duty sought to be enforced and not by the nature of the office held by the respondent.   (Marbury vs. Madison, 1 Cranch, 137.)   But it is  said that this court, in the case of Severino vs. Governor-General  (16 Phil. Rep., 366), held otherwise.  This  is true, and the rule, to this extent,  has been  modified in  this jurisdiction.  But political necessity and  public policy demanded this modification.  There is nothing growing out of the official character of the respondnt in the case at bar which  exempts him from or places him beyond  the jurisdiction of the  court.  He was appointed Auditor for the Philippine Islands by the Secretary of War, with the concurrence of the Governor-General and the  approval of  the Philippine  Commission.   The  Bureau  of Audits, of which he is the chief, in so  far as  it  is under any  direction in the  Philippine Islands, conies under the executive control or supervision of the Governor-General. The  duties of public  officers are of two kinds: (1) those of a political or legislative character, in the discharge of which their discretion is uncontrollable by mandamus; (2) those administrative,  judicial,  and  quasi-judicial  duties imposed by law.  No one will claim that the duties, of the respondent belong to the first class.  His duties, under the statutes,  are  administrative, and, to some extent,  quasi-judicial,  only.  I am not  unaware of the fact that the Government of the Philippine Islands is divided into three separate  and coordinate departments: the legislative, the executive, and the judicial; that each  department operates as independently of the other as the same departments do in the United States, and that the respondent is an executive officer.   This being true, it is said that inasmuch as each department has  the right to judge of the laws for itself and as each  officer is only responsible for  an abuse  or usurpation in the mode pointed out  in the law, it necessarily follows that the respondent must be supreme within the scope of his powers and not subject to control by the courts for the manner in which he  performs  or  fails  to perform his legal duties.   This argument is  founded on theory, rather than on reality.   There is no express provision in the Organic Act, nor in any other statute, exempting the respondent, as chief of the Bureau of Audits, from being sued in any of the courts of the Philippine Islands, or in any action coming within the  jurisdiction  of any particular court; upon contract or upon tort, quo warranto, habeas  corpus, mandamus,  or injunction;  or from being liable to any process or writ, properly issued, by any court, such as subpoenas, summons, and other writs of process. If he is exempt from  all kinds  of suits in  the courts and from  all kinds of process issued by the courts,  it must be because of some hidden or occult implications of the laws or statutes or from some inherent and  insuperable barriers found in the structure of the government  itself, and riot from the express provisions of the statutes.
   
  As I have said, the question as to  whether or not the courts of the Philippine  Islands may control any of the acts of the Governor-General has been decided in the negative.  The question, however, whether the courts of this country may control any of the acts of the Auditor should, in my opinion, upon well founded legal principles, be decided in the affirmative.  If it be decided (and this court, for all practical purposes has so held this point to be examined later) that the Auditor, because he is chief of the Bureau of Audits, may, for that reason, be allowed to enjoy absolute immunity from all judicial process,  even when, as in the given instance, the personal liberty of a  citizen is at stake, then, why cannot the same exemption from judicial process be set up by any one of the officers of the executive department?  Upon this theory there can> be but one answer to this question.

"The duty of the Auditor (the respondent in this case) shall be to examine, audit, and settle all accounts pertaining to the revenues and receipts from whatever source of the Insular Government and  of the city of Manila, including trust funds and funds derived from bond issues;  and to audit, in accordance with law  and administrative regulations, all expenditures of funds or  property pertaining to or held in trust by the Insular Government and the city of Manila.  (Act No. 1792, sec. 2.)

"The jurisdiction of the Auditor over accounts, whether of funds or property, and  all vouchers and records pertaining thereto, shall be exclusive.   *  *  *

"The decisions of the Auditor shall be final and conclusive upon the executive branches of the Government, except that appeal therefrom may be  taken by the party aggrieved or the head of the Department concerned, within  one year, in the manner hereinafter prescribed."  (Id., sec. 6.)

Section  9 of Act  No.  1792  authorizes  the Auditor to summon witnesses, administer oaths, and  to take evidence in certain cases,  and by  section 50 of the same Act the Auditor may, with the written consent of the  Governor-General, mitigate, remit,  remove, compromise, release, or discharge any liability, in whole or in part, to the Insular Government, a provincial or a municipal government, in any matter before him, when in his judgment the interests of the Government require it, provided, however, that no liability in excess  of two thousand pesos shall be so mitigated, remitted, or compromised.  By authority contained  in section  29 of said Act,  the Auditor, on account  of  fraud, collusion, error in calculation, or newly discovered material evidence, or when, in his judgment, the interests  of  the Government may seem to  require it, is authorized,  within three years after original settlement, to reopen su'ch settlement, and after written notice to the person interested and after a reasonable time for the reply or appearance of such person, to  certify thereon a new  balance.  The  foregoing are all of the provisions  of law  touching the powers and duties of the  respondent which are necessary to be considered in this case.

The conclusions of  the  court are stated in four paragraphs.  In paragraph (a) it is stated that the courts will take  jurisdiction against  the Auditor for the  Philippine Islands in a proper case to compel action on his part when by reason of unnecessary delays in taking any action at all persons have  been deprived of a right and have no other adequate and speedy remedy in the ordinary course of law. It is here held that the court will compel the Auditor to  act under certain circumstances when the injured  party has no other adequate and speedy remedy.  In paragraph (c) the court holds  that the appeal provided for in Act No. 1792 is a speedy, adequate, and exclusive, remedy.   Under this holding, if the Auditor fails to act at all, the courts will compel him to go forward, but not to decide the question in any specific manner.  If he denies  the request  for a clearance presented by any person, the only remedy that person has is by appeal tp the Secretary of War through the Governor-General.  He cannot, under this holding, obtain any relief whatever in any of the courts of the Philippine Islands.  If such a decision of the Auditor is sustained by the Secretary  of War, this court intimates in paragraph (d) of its conclusions that it might  review the actions  of the Auditor and the  Secretary.  But in the body of the opinion it is stated that the decision of the Auditor upon air accounts pertaining to the revenues and receipts, from whatever source, of every governmental entity within the Philippine Islands  is final and conclusive upon all parties, unless an appeal is taken within one  year to the Secretary of War through the Governor-General.  It is also held that the decision of the Secretary of War upon such appeal  is final and conclusive.  After having decided that the decision of the Auditor and the Secretary of War upon all questions touching the revenues of the country and the allowance  or disallowance of claims against the Government, is final and conclusive against all parties, the court says:

"When the law  confers exclusive and final jurisdiction upon the executive department of the Government to dispose of particular questions, their judgments or the judgment  of that particular department are no more  reviewable by the courts than the final judgment or decisions of the courts are subject to be reviewed and modified by them."

No one  at any time has ever intimated  that the judgments or decisions  of the courts are  reviewable by any  of the executive departments.
   
The result is  that this court has decided: (1)  that  in the case at bar, as well as in all other cases, the Auditor, before he is required to issue a certificate of clearance, must examine,  audit,  and settle the accounts  of the interested person; (2) that in reaching a decision upon these matters the Auditor must necessarily and does  use judgment and discretion;  (3)  that such decisions  by the  Auditor are final and  conclusive upon all parties, unless an appeal be taken as provided in Act No. 1792; and  (4)  that  the decision of the Secretary of War  upon  such appeals is final and conclusive upon all parties.   Or, in other words, mandamus will never lie to compel the Auditor  to issue a certificate of clearance to any one.  The court cites in support of this holding a long array of authorities.  Before proceeding to inquire into the soundness of  these holdings,  it is well  to  carefully examine the allegations in relator's petition, bearing in mind that the questions in the case have been decided upon respondent's demurrer and not upon the merits after trial.  It is necessary to here examine briefly the elementary rules of pleading  touching demurrers.   In the case of Alzua et al. vs. Johnson (21 Phil. Rep., 308), this court said:

  "While it is  sometimes loosely stated that a demurrer admits the truth of all the allegations of fact set out in the complaint, the rule thus broadly stated has many important and well recognized limitations and restrictions.  A more accurate statement of the rule is  that  a demurrer admits the truth of all material and relevant facts which are well pleaded.  It will readily be seen that the italicized portion of the rule as thus stated modifies the  looser and broader statement of the rule to a marked degree.  Without stopping to discuss the reasons for the  various rules of pleading set out in the following paragraph, we lay them down here, relying upon the reasoning and authority of the cases cited in support  of each and all of them.

"A demurrer admits only such matters of  fact as are sufficiently pleaded (Com.  Dig. Pleader (A 5); 4 la., 63; 14 Ga., 8; 9 Barb., 297; 7 Ark. 282; 6 Wash., 315; 7 Misc. Rep., 1); a demurrer does not admit  the truth of  mere epithets charging fraud; nor allegations  of legal conclusions (144 U. S., 75) ; nor an erroneous statement of law (97 Ala., 491).  The admission of the truth  of material and relevant facts well pleaded does not extend  to render a demurrer an admission of inferences  or conclusions drawn therefrom, even if alleged  in the pleading;  nor mere inferences  or conclusions from facts not stated;  nor conclusions of law; nor matters  of evidence;  nor surplusage and irrelevant matter.  Furthermore, it is settled that the general rule touching admissions by demurrer does not apply where the court may take judicial notice that  the facts alleged are not true; nor does it apply to  legally  impossible  facts; nor to facts which appear unfounded by a record incorporated in     the pleading, or by a document referred to; nor to general averments contradicted by  more specific averments.   So, also,  the truth of scandalous matter, inserted merely to insult the opposing party, is not admitted.   (In support of these propositions see many scores of cases cited in 31 Cyc, 333, 334, 335, 330, and 337, and 6 Enc. PI. & Pr., 334, 335, 336, 337, and 338.)  It has  been deemed proper to set out these general propositions laid down by the courts of last resort in the United  States touching the limitations on the general rule  as to admissions by demurrer, because, in this jurisdiction,  wherein a new system of procedure has been but lately introduced, the cases thus far decided have not very  exhaustively considered the limitations on the  rule; and for a clear understanding of this portion of our opinion, it is necessary that these limitations should be kept clearly in mind.  But it is proper here to observe that most of these propositions  are themselves subject to certain  restrictions and limitations  in accordance with  the  varying nature of the infinite variety of conditions to  which they  are applicable."

That a demurrer admits the truth of all  material and relevant allegations of fact which are well pleaded is settled in this jurisdiction.  It, is not necessary to look elsewhere for authority to support this rule.  This rule applies as well to mandamus proceedings as it  does to  any  other  case. (United States vs. County of Clark,  95 U. S., 769, 24 L. ed., 545; Ex parte Newman, 81 U. S., 152, 20 L. ed., 877.)   So no one will deny that respondent, by demurring to the petition, admitted as  true  all of the  material allegations contained therein.  Now,  what are the material allegations? In the majority opinion the court says:

"It is  believed that all  of the material allegations of the petition which the relator intended to make, eliminating all purely evidential and immaterial allegations, may be fairly stated as follows, to wit:
       
"First, that the relator had been for a period of four years, the superintendent of the Iwahig penal colony.

"Second, that the relator has rendered an account for all property  and funds of the Government which have come into his possession.

"Third, that  it is the  legal duty of the respondent as Auditor for the  Philippine Islands to issue an auditor's certificate (clearance) to any employee or agent of the Government who has left the service, when the records of the office of the Auditor show that the accounts of said employee or agent are balanced and that said employee or agent has properly rendered an account for all  government property and funds which have come into his possession during the time of said employment." 

This third statement is  purely a conclusion of law, and can very well be eliminated.     

"It is believed that all of the material allegations of the petition which the relator intended to make   *   *  *  may be fairly stated as follows:"

The majority  of this court here solemnly assert that they believe that all  the material allegations  which the relator intended to make are:  (1) that he had been for four years superintendent of the Iwahig penal colony j and (2)  that he has rendered an account for all property and funds of the Government  which have come into his possession.   After reading this petition,  which is  copied in the  majority opinion, I ask, upon what grounds does this court base this belief? Why does the  court say it is believed "all of the material allegations which the relator intended to make?" It is not stated that the relator did not make other material allegations, but  that he did not intend to do so.   All will admit that there are other material allegations in the petition, but this court believes that the relator did not intend to make them.  The strongest proof obtainable in the world to show that the  relator  did intend  to make these other material allegations is the fact that he did make them, and that they are material.  In all the history of jurisprudence which I have yet had an opportunity to examine, I have been unable to  find another adjudicated case where the highest court in the land,  or any  other  court, disregarded strong,   clear, and positive material  allegations  in a complaint or petition and substituted therefor its (the court's) belief that the plaintiff or relator did not intend to make such allegations.  Now, what are these other allegations, and are they material?  The relator, in paragraph 3  of  his petition, states positively that the legal records of the office of the Auditor for the Philippine Islands demonstrate  and show that his accounts are balanced and that he has properly accounted for all government property and funds which have come into his possession during the time he was an employee of the Government.  Here the relator not only alleges that he has properly accounted for all government property and funds,  but that his accounts  are  balanced  and that the records of the respondent's office show these facts.  Then, if the respondent's records show that the  relator's accounts have been balanced, it necessarily follows that the respondent has balanced said  accounts.  Who can say that these allegations are not material to the issues involved in this case ?  They are the very foundation upon which the relator bases his right to a certificate of clearance, the propeller of his ship.  Take them away and substitute therefor  a belief and the relator must drift  hopelessly upon the high seas of uncertainty.  The respondent,  by having demurred to the petition, admits that these allegations are true.  Again, the court says:

"Is the mere rendition of accounts of  government property and funds by an employee all that is necessary to entitle such employee to  his clearance?  Is the Auditor,  who is responsible for the proper  disposition of government property and funds, obliged to accept a mere paper balance? Is the Auditor not to be given an opportunity to count the cash (funds) as well as to see that the property.of the Government actually exists which had been in the  possession or under the control of such employee? Is the Auditor not to be given an opportunity to make an actual inspection for the purpose of satisfying his  own mind that the paper balance conforms with  the  actual facts?  Experience  has taught auditors as well as business men generally that mere paper balances are not always reliable.  The actual funds and property are not always visible in such balances."   

Why talk about mere paper accounts,  an opportunity to count funds and see property, and the experience of auditors and business men, when the respondent admits that the relator's accounts have been examined, audited, and balanced, and that the  relator has properly accounted for all government funds and property which have come into his possession?   These matters might come up on a hearing on the merits, but they have no place in the consideration of this case at the present time.

The relator further alleges that his accounts up to March 11, 1911, were  "fully  audited and balanced and closed; and said audit  has not been revoked or reopened," and that on that date he was issued a clearance by the Auditor, and that "covering the period from March 11, 1911, the date of said clearance,  *   *   *  up to and including December 31st, 191 lj the date of the effective acceptance of relator's resignation, relator has accounted for all property and funds of the Government which have come  into his possession; and it is not even claimed by the 'Insular Auditor'  that he has not done so."   Here the relator again alleges in substance that his accounts have been balanced and that he has accounted for all government funds  and property for which he was responsible; that he owes the Government nothing; that the Auditor does not  even claim that these allegations are not true.   Under  the pleadings as they now stand, the respondent comes into this court and admits that  these allegations  are  true.  This court does not say that the relator has not made these allegations, nor that they are immaterial, nor that the respondent has not admitted that they are true, but the court does say that "it is believed" that the relator never "intended  to  make" them.  Again, according to the allegations in the petition, which the respondent admits to be true, the reason why the respondent refuses to issue a  certificate of clearance  to the relator is on account  of a "probable civil suit which might be filed by one Fernandez against the Government."  Upon this point the court says: 

"In fact the relator alleged that the respondent had already acted and had denied his claim (see paragraph 8 of the petition)  and gave  what seems to be a good  reason therefor."

Here the court makes a little change in its "belief."  Here it finds another material allegation and believes that the relator intended to make it.  The principal ground, according to the pleadings, upon which the respondent based his decision denying relator's request for a certificate of clearance was this probable civil suit which one Fernandez might file against the Government.  This  court  says that this "seems to be a good reason."  The court does not give any reason why it reached the conclusion that this probable civil suit was a good reason for the denial of the relator's request for a certificate of clearance.   This probable suit is not mentioned anywhere else in the opinion; but I take it, from reading the whole  decision,  that  the foundation for this holding of the court rests upon the proposition  that the respondent, in reaching his conclusion upon this point, had to use judgment and discretion.  Is this the kind of judgment  and discretion which will defeat the relator's right to a writ of mandamus?  In answering this question, it must  be constantly  borne in mind that the personal  liberty of the relator is involved.  He cannot leave the Philippine Islands to go to his home in the  United States.  He, for all intents and purposes,  is a prisoner and must remain so. On the one side, we have a probable civil suit which might be brought against  the Government, and on the other, the personal liberty of  a citizen, whose home is in the United States.  When  the Auditor holds that a probable civil suit against the Government is a good and sufficient reason for denying the relator's request for a certificate of clearance and this court solemnly  approves such  a holding, and as a consequence, the relator remains a prisoner, is it not beginning to appear that the great and sacred principle contained in the fifth section of the Act of Congress of July 1, 1902, is a "chain of sand,"  a myth, a delusion, instead of a reality?
   
  The  relator further alleges that the respondent caused to be instituted against him three charges for malversation of public  funds; that the Governor-General  ordered the prosecution of these cases  discontinued, and that they have been eliminated  (dismissed).  This court,  in the majority opinion, says nothing of these allegations, for  the reason, I  assume, that, the respondent having admitted that these criminal charges had already been dismissed, the court did not  think  it necessary  to discuss them.   In  this I  fully agree.  If these criminal charges for the malversation of public funds had not been dismissed before the filing of the  petition  in the  case under consideration, they might have furnished some  grounds for the justification of the action of the respondent in declining to issue the certificate of clearance; but as they were dismissed, neither this court nor  counsel for respondent now consider them  of  any importance.  And again, the relator alleges that without the certificate  of clearance  from the respondent, he cannot collect  from the Government the amounts due  him for accrued leave, salary, and transportation.  This court does not  directly  and specifically  discuss the relator's right to have these amounts paid him.  But it  does discuss at great length the question of the powers and duties of the respondent as Auditor to pass  upon all accounts wherein the revenues of the Government are involved, and cites a number of authorities in support of its position in regard to these matters.  I must, however, assume that the court had in mind at this  time  these  claims of the  relator  against the Government, and  I  insist that as a  legal proposition all of that part of the majority opinion which  deals with or refers in any manner to  claims in favor of or against the Government must rest upon  the  relator's right to receive the amounts due him for accrued leave,  salary, and transportation.  Upon what else can that part of the  opinion be based, when we remember that the respondent,  as I have so often said, admits, by reason of having demurred to the petition, that the relator has properly accounted for all Government funds and property which have come into his possession, and that he does not now  owe the Government anything whatsoever?
 
  Counsel for the respondent lays down the proposition that "mandamus will not lie where its  primary and underlying motive is a suit against the Government of the Philippine Islands without its consent;" or, in other words, that the primal motive in instituting this action is not so much  to secure a clearance as to  enable the relator to receive his accrued leave, salary, and  transportation;  and if this court should order the respondent to issue a certificate of clearance to the relator, it would be sanctioning a suit not  brought directly against an official  personally, or even officially, but against the Government of the Philippine Islands, without its consent, as it would necessarily follow that these claims of the relator for accrued leave, salary, and transportation would have to be paid.
 
  In  the final analysis, the  whole case, up to  this point, is narrowed down  to one question only; that is, Can the courts control by mandamus the  judgment and the discretion which were exercised by the respondent when he denied the relator's request  for a certificate  of clearance upon  the grounds (1) that a probable civil suit might be brought by one Fernandez against the Government, and (2)  that the  Government, in  all probability, would have to pay the claims of the relator for leave, salary, and transportation?   I  shall now attempt to demonstrate that this question  is, upon  sound legal  principles,  to be  answered in the affirmative,  and in so doing, I shall disregard as inapplicable all the authorities cited in the majority opinion which tend to  support the  general proposition that the decision of the Auditor upon matters pertaining to the settlement of bonded officers' accounts is  final and conclusive, because the accounts of the relator as superintendent Of  the Iwahig Penal Colony have been,  according  to the pleadings, balanced, leaving the relator owing the Government nothing.
 
  That one Fernandez cannot sue the Government in a civil action without its consent is well known by everyone. Then, why should  the respondent be allowed  to hold up the claims of the relator for  accrued leave, salary,  and transportation on this ground?   In deciding to do so, what kind of judgment and discretion did he use?

    "After at least two years' continuous, faithful, and satisfactory service,  the Governor-General or proper head of Department shall,  subject to the necessities of  the  public service, and upon  proper application  therefor,  grant each regularly and permanently appointed officer or employee in the  civil service, Insular or provincial,  or of the city of Manila,  except  as  hereinafter  provided, accrued leave of absence with full pay, inclusive of  Sundays and of days declared public holidays by law or executive order, for each year of service in accordance with the following schedule: *   *  *  (Sec. 23 (a), Act No. 1698.)   

"If an  officer or employee elects to postpone  the taking of any or all  of the leave to  which  he is  entitled  under this section, such leave may accumulate and if  his salary changes he shall  receive the same amount of leave and pay as if he had taken the leave while receiving the  salary at which it accrued: Provided, however, That  after January first, nineteen hundred and five, no person shall at any time have to his credit more than the accrued leave allowed  for five  years' service.   (Idem (b), idem.)
     
"An officer or  employee separated from the service for cause, or who commits an act which requires his separation from the service, shall not be granted leave  or any of the other privileges provided in this section and in the following sections.  (Idem  (h), idem.)

"Irrespective of  leave  granted,  a  regularly  appointed officer or employee  who has rendered continuous, faithful, and  satisfactory service for three years or more after arrival in the Philippine Islands, shall, upon  his retirement from the  service,  be allowed Half  salary for thirty days in addition  to  full salary for the period which  may be granted him as leave of absence under  the provisions of this Act; and if appointed prior to January twelfth, nineteen hundred and  four, he shall also be furnished transportation from  Manila to San Francisco,  or  transportation of equal cost to the Government by any other route:  Provided, That  such transportation must  be used within six months after retirement from the service."   (Sec.  29 (d), idem.)

  The  accrued  leave, salary, and  transportation of  the relator  as  superintendent  of  the Penal Colony were fixed under express authority of law, and the appropriation act provides the funds for the payment of the  same.   Again I  ask, what  kind of Judgment and discretion did the respondent use in deciding that these claims  should not be paid?   According to  the doctrine laid down by this  court the respondent must necessarily and did use  judgment and discretion in deciding all of these questions, and, therefore, his decision  in these matters can not be reviewed by  the courts nor controlled by mandamus.
 
  The writ of mandamus is a judicial writ and part of the recognized course of legal proceedings and is a writ of right. Two things must concur to authorize a writ of mandamus: the officer to whom it is directed must be  one to whom, on legal principles, such writ can be issued; and the person applying for it  must be without any other  plain,  speedy, and adequate remedy.  The writ does not issue as a matter of course.  It will  issue only where there is a clear legal right sought  to be enforced.   It will not issue to enforce a doubtful right.  The  writ lies to enforce  individual rights arising  under the  laws of the Philippine  Islands.  The grounds for mandamus have gradually been extended.  (Ex parte Virginia, 100 U. S., 313, 25 L. ed.,  667.)    

This court, in the case of Severino vs, Governor-General (16 Phil, Rep., 366),  said:

 "It is admitted and universally recognized that mandamus and injunction will never lie to enforce or restrict a duty which is discretionary.  This proposition is elemental and it is unnecessary to cite authorities in support of the same." 

I believe this to be sound law, but it cannot be said that every  act is within the legal or official discretion of the officer performing it.  In my opinion,  "discretion," when applied to officers of the Government, means sound discretion, guided by  reason.  It must not be arbitrary, vague, and fanciful, but legal  and regular.  And when an officer's acts do not come within this rule, the courts have the power to and should intervene.  Is this proposition founded upon principle and authority?
   
I shall first examine the decisions of the Supreme Court of the Philippine Islands touching the power of this court to review  the acts  or decisions  of inferior boards and tribunals  by  mandamus or otherwise.  In  the  majority opinion it is stated: 

"Judicial action cannot be subject to any control or direction, except by law, or by an appeal.1 It is independent of all control except by law.   

*       *      *       *       *       *      *

"The writ of  mandamus  cannot  be used to control the judgment and discretion of an officer in the  decision  of a matter which the law gave him the power and imposed upon him the duty to decide  for himself.   

*       *      *       *       *      *      *   

"The general rule adopted by the Supreme Court of the Philippine Islands is that mandamus will never be issued (a) to control discretion, nor  (b)  when another adequate remedy exists.   

    *       *      *       *       *      *      *

  "The writ  of mandamus  cannot  be used to control the discretion of a judge or to  compel  him to decide a case or a motion pending before him in a particular way."

    If  I correctly understand  the whole question, I conceive that judicial action cannot be subject to any control or direction except by law or according to law.  My position is that where an officer, board, or tribunal abuses the discretion conferred by law, this court can review such action, and in so doing it proceeds according to law, and that this has been the constant holding of this court.

The Collector of Customs for  the Philippine Islands is authorized and does appoint what is known as a Board of Special Inquiry to examine into the right of aliens to enter this country.  This board operates under section 25 of the Act of Congress of March 3, 1903.  This section provides that the  decision of any  two members of such board shall prevail and be final,  but that either the alien or the dissenting member of said board may appeal through the Commissioner of Immigration at the port  of arrival and the Commissioner-General of Immigration, to the Secretary of the Treasury, whose decision shall be final.  In this country the appeal lies through  the Collector of Customs to the Secretary of Finance and  Justice. Here the  statute expressly says that the decision of the administrative officers is final;  but this court, following the decisions of the Supreme Court of the United States, would not hesitate to review and control the action of these administrative officers wherein  it is alleged  and shown  that such officers  grossly abused the discretion conferred upon them or acted in open violation of the law.   (Rafferty vs. Judge of First Instance, 7 Phil Rep., 164; Ngo-Ti vs. Shuster, 7 Phil. Rep., 355; Ko Poco vs. McCoy, 10 Phil. Rep., 442; Juan Co vs. Rafferty, 14 Phil. Rep., 235; Edwards vs. McCoy, 22 Phil. Rep., 598.) Act No. 1792 says that the Auditor shall audit, in accordance with law and administrative regulations, all expenditures, etc., and  that his decision upon these matters shall be final and conclusive upon the  executive branches of the Government; but this court says that such decisions are final and conclusive upon  all parties.   I understand that there  is a great difference between  the two statements.   The first includes the executive branches of the Government only, and the second includes every branch of the Government.  Must the different holdings in reference to the Special Board of Inquiry and the Auditor rest upon the fact that the latter is dealing with the revenues of the country?  Surely this cannot be a sound basis when we remember, as in the case at bar, the personal liberty of a citizen is at stake, and in fact that the citizen is a prisoner and must, for all intents and purposes, remain so  until some means are devised (which are yet unknown) whereby he may obtain a certificate of clearance.   In the scales on  the  one  side we have a question affecting the revenues of  the Government,  and on the other, the personal liberty of a citizen, with the result that the former  outweighs the latter.  It is the  concurrent testimony of all history that no country ever maintained itself long in health, happiness and prosperity, where the people felt that  their individual liberty was not safe under the law.

Again, this  court does not hesitate to control by mandamus  the  judgment and discretion of the Courts  of First Instance  wherein it is alleged and shown that such courts have abused the discretion conferred upon  them, or have erroneously interpreted the law, to the prejudice of private rights.

"This court will  not interfere to modify, control, or inquire into the  exercise of this discretion which is conferred by statute, , unless  it be alleged and  proven  that there has been an abuse or an excess of authority on the part of the judge."  (Calvo vs. Gutierrez et al., 4 Phil Rep., 203.)

In the case of Trinidad vs. Sweeney et al.  (4 Phil. Rep., 531), the respondent judge  was of the opinion that the petitioner was not  entitled to an appeal in  a certain case to the Supreme Court.  In  reaching this conclusion the judge had to exercise his judgment.  This court held that upon the  facts stated in  the complaint the plaintiff  was entitled to prosecute an appeal and overruled the respondent's demurrer.

In the case  of Ricamora vs. Judge of First Instance (3 Phil. Rep., 137) the  respondent refused to sign a bill of exceptions upon the ground that he had not tried the case. This court issued a writ of mandamus directing  the  respondent to sign  and allow  a bill of exceptions, saying:

"Section 143 of the  Code of Civil Procedure nowhere states that the bill of exceptions shall be presented to  the judge who tried the case.  It is capable of the construction that the judge referred to is a judge of the court at  the time the bill is presented for signature."

Here this court admitted that  section 143 is capable of two constructions: first,  that  the  bill of exceptions can only be presented  to the judge  who  tried the case, and second,  that it can be presented to the judge presiding at the time of its presentation.   The lower court held that the former was  the  proper construction, but this court held that the respondent erroneously interpreted or construed the law and issued the writ.

In the case of Santos et al. vs. Judge of Land Registration (5 Phil. Rep., 171), the petitioners asked for a writ of mandamus to compel the respondent to sign and certify a bill of exceptions. The respondent stated that he would not sign and certify the said bill of exceptions because it was not presented within the period prescribed  by law. This was held to be an insufficient reason and the writ was issued.   (See also the case of Herrer vs. Herrera, 5 Phil. Rep., 383, and Babasa vs. Judge of First Instance, 12 Phil. Rep., 766.)

In the case of  Requepo vs. Judge of First Instance  (21 Phil. Rep., 77) Requepo instituted a civil suit in the justice of the peace court against one Rosales to recover the possession of a certain parcel of land.   Judgment was rendered in favor of the plaintiff and the defendant attempted to appeal without filing a bond.   The justice of the peace certified  the record to the Court of First Instance, where the cause was placed upon the  docket.  A motion was made asking  the court to dismiss the appeal upon the ground that no bond had been filed.   The judge denied the motion, and at the same time directed Rosales to present the required bond within twenty-four  hours.  The bond was  presented.  Plaintiff then made another motion to dismiss the appeal upon the ground that the bond was not presented at the proper time. This motion was denied, the judge holding that according to his interpretation of the law a person appealing from the judgment of a justice of the peace in cases of this character could present his bond in the Court of First Instance.  The plaintiff  brought  mandamus  proceedings in this court asking that the writ be issued directing the judge to dismiss the appeal.  The writ was granted as prayed for.

In the case of  Government vs. Judge of  First Instance, (R. G. No. 7514)^[1] one Cerredo and another were charged upon a  sworn complaint  signed by Eugenio Lagrazon, the husband of Cerredo, in the justice of the peace court with the crime of adultery.   Upon completion of the preliminary investigation the justice of the peace bound the two accused over to the Court of First Instance, and the case was regularly docketed in that  court upon a new complaint  signed and sworn to by the offended husband.  Before the accused were arraigned for trial, the offended husband filed a motion to dismiss the case on the ground that his wife had agreed to live with him.  This motion was opposed by the fiscal upon the ground  that  under the existing law an  offended person could  not  pardon  accused parties  in crimes of this character.  The court granted the motion  and dismissed the case and denied an appeal from that order to this Supreme Court.  The Government instituted mandanfus  proceedings to compel the judge to allow the appeal.   It  was urged that the judge when he dismissed the complaint used the discretion vested in him by  law and  used his  best judgment in the interpretation of the law  as to whether or not he had the power to  dismiss the case.   But this court granted the writ and ordered the judge to admit the appeal.  Here is a clear case of where both the judgment and the discretion of the lower court have been controlled, the first upon the ground that he erroneously interpreted the law,  and the second upon the ground that he had abused his discretion.

There was much conflict in the earlier decisions in the United  States as to whether the writ of mandamus would issue to the higher  officers of the state.   There is  now, however, very little contention on this point,  except as to its applicability to the chief executive.  On this point the courts are, as we said in the case of Severino vs. Governor-General, supra, divided, and the leading case of Marbury vs. Madison, supra, is cited in  support of both sides of the controversy. The province of the  court is to decide on the right of individuals;  not to  inquire  how the  executive or executive officers perform duties which are in tfreir nature political. The courts have no jurisdiction to decide whether a foreign country has become an  independent state  (Kennett vs. Chambers, 14  How., 38, 14 L. ed., 316); nor to deal  with the admission of a state into the Union (Luther vs. Borden, 7 How., 1,  12 L. ed., 581); nor of the restoration of a state lately in rebellion (Georgia vs. Stanton, 6 Wall., 50,  18 L. ed., 721).  All these questions are for the political or legislative departments and the courts cannot settle them.   The decisions of such  officers in these matters are  final.   But where the acts of executive officers involve the interpretation of the constitution or the laws they  are, under certain circumstances, subject to review by the courts.  It is  often difficult to  define in exact terms what the duties of public officers are.  In such cases that which is incapable of exact definition  is left  to the officer's discretion.  Probably as strong a statement of the refusal of the courts to interfere with the exercise of the duties imposed upon public officers as can be found is stated by the court in Riverside Oil Co. vs. Hitchcock (190 U. S., 316, 47 L. ed., 1074), and which is quoted with approval in the recent case of United States ex rel Ness vs. Fisher, decided March 11,  1912, and reported in Advance Sheets  No. 10, at page 356.  The majority opinion rests largely upon these two cases.  In the Riverside Oil case, one C. W. Clark was the owner in fee of certain lands in the state of Oregon, covered by a patent from the United States to his grantors.  The land was situated in a forest reserve iri that state.  On the 28th of October, 1898, Clark executed a deed which conveyed in fee and relinquished to the United States said land. Certain other public lands were  thereupon selected  by  Clark  which  had  been  duly surveyed and classified as agricultural lands prior  to the selection, and appeared on the records of the Land Department as such and were subject to disposition under the Act of June 4, 1897.   The Land Department required Clark to publish a notice of his selection for a period of sixty days. Clark complied with these requirements and on February 6, 1900, before the sixty  days had  expired, the Kern Oil Company filed a protest against this selection.  On January 2, 1900, Clark  conveyed by deed the selected land  to the Riverside Oil Company,  This company then filed a motion to dismiss the protest.  A  hearing was had before the Commissioner of the General  Land Office, and his decision in the matter was that the title of the selector did not pass until approval by the commissioner,  and that the land included in the selection was yet open to exploration under the mining laws, and if, at the date of the decision,  the land is shown to be mineral, it defeats the selection.  The land  was not passed to patent.  This decision was sustained by the commissioner's  superiors.   The Riverside Oil Company filed a petition asking for a writ  of mandamus to compel the Secretary of the Interior to  vacate the order made  by  him rejecting the selection of Clark and  to order such selection passed to patent.  The Secretary of the Interior  decided, after hearing all the parties, that the land selected  was not "vacant  land."  The petitioner urged that  the  Secretary erred in  holding that a discovery of mineral upon the land selected,  subsequent to the  selection and before approval by the commissioner, would defeat such selection.  This holding was  not only a  reasonable interpretation  of the law, but it appears to be a  correct interpretation.  So this case is clearly distinguishable from  that of Ballinger vs. United States ex rel. Frost (216 U. S., 240, 54 L. ed., 464), hereinafter cited, and cannot affect the  holding of the court in the latter case.

In the case of United States ex rel. Ness vs. Fisher, supra, Mary S. Ness, being desirous of purchasing some land under the Timber and Stone Act, filed in the proper land office a written application in which she  stated that the land described in her petition  was unfit for cultivation, valuable chiefly for its timber, uninhabited, and contained no mining or other improvements.   She swore to this petition.  In the investigation it developed that the petitioner had never been upon the  land described in her petition and that she  made the  above averments upon information  and belief.   The local land officer dismissed the petition.  The Commissioner of the General Land Office and the Secretary  of the Interior affirmed this decision.  Mary S. Ness then filed a petition asking for a writ of mandamus to compel the Secretary of the Interior to accept, as conforming to the Timber and Stone Act, her  application.  The  writ was  denied.   The local land officer, the Commissioner, and the Secretary of the Interior all held that the averments of the petition filed in the local land office that the land which relator sought to purchase was unfit for cultivation, valuable chiefly for its timber, uninhabited, and contained no  mining or other improvements, must be made upon personal examination and inspection and not upon information and belief.  This had  been the repeated construction of the law by  the  Secretary of the Interior.  The Supreme Court said:

"That the Secretary's  decision  rejecting the relator's application was not arbitrary or capricious bu,t was based upon a construction of section 2 which was at least a possible one, had long prevailed in the Land Department, had been approved  in the United  States  vs. Wood  (70 Fed., 485), and Hoover vs. Sailing (102 Fed., 716), and has since been sustained  by the Court of Appeals in the present case."

While the Supreme Court did not specifically and directly decide that this was the proper interpretation of the law, yet it did decide that it was not an arbitrary or capricious interpretation.  So this case is likewise distinguishable from the Ballinger case and leaves the doctrine laid down in that case in full force and effect.
   
  The rule that courts will not interfere where a public officer exercises discretion vested in him by law, was laid down in the early period of American jurisprudence.  At that time there was present in the minds of all men the fear and the abhorrence of a government in which the ultimate power might become vested in one particular branch.  Having just escaped from such a government at a great sacrifice,  the American people determined to so divide the powers of government that it would be impossible for any one man or set of men to control  the whole  system.  In keeping with this policy, the courts early refused to attempt to review or revise the acts of the other departments.  It was reasoned that if the courts were the final reviewing power in those cases where another branch of the government was vested with discretion, it would  in effect make that branch the  mere passive servant of the judiciary.   The fallacy of this reasoning has long since been demonstrated.   Instead of regarding the three departments of government as independent, they are now considered as coordinate, and the whole system is regarded as one of checks and balances.   Cases very quickly arose in which officers were disregarding a reasonable construction of the law, and in fact abusing the discretionary power conferred upon them, to the injury of  individual rights.  In an endeavor  to adhere to the rule as first laid down and yet reach the offenders, it was necessary tq classify the duties sought to be enforced as ministerial.  The fiction still  prevails in many jurisdictions that courts  will not review or control  such discretion, while at  the same time its arbitrary and abusive exercise is constantly  being corrected  and  controlled by  the courts under the guise of a ministerial  duty.  This  applies only to those cases where the officer has acted, and not to the cases where he refuses to act, for the rule is still true that where the law vests discretion in an officer and he refuses to exercise it, the .  only function of the court by  a writ of mandamus is to "set him in motion."  The Supreme Court of the United States has  consistently  adhered to the  ministerial-discretionary classification of duties of public officers.   But it is said that the courts very often denominate a discretionary duty as a ministerial duty in order to take jurisdiction in those cases where a public officer has acted  in  a manner  not in  accordance with the intent of the law.

In  the  United States  ex rel. Steinmetz vs.  Allen (192 U. S., 541, 48 L. ed., 555) (1904) a petition for  mandamus was filed in the Supreme Court of the District of Columbia to compel the Commissioner of Patents to require the primary examiner to forward an  appeal, prayed by the petitioner, to the board of examiners in chief, to review the ruling of the  primary examiner requiring petitioner  to cancel certain of his claims in his  application for a patent. The court dismissed the petition and its action was  affirmed by the court of appeals.  The case then went to the Supreme Court of the United States, where the decisions of the two lower courts were reversed and an order issued directing the granting of the mandamus.  In this case the Supreme Court said in part:
   
  "In Bennet vs. Fowler (8 Wall.,  445,  19 L.  ed., 431), a discretion  in the Patent Office was recognized.   The question arose upon the validity of two  reissued patents for improvements, which 'had been embraced in one, in the original patent.'  The court said:

 " 'It may  be that if the improvements set forth in both specifications had been incorporated  into one patent, the patentee taking care to protect himself as to all his improvements by proper and several claims, it  would have been sufficient.  It is difficult, perhaps  impossible, to lay down any general  rule by which to determine when a given invention  or improvements shall be embraced in one,  two,  or more  patents.  Some discretion must necessarily be left  on this subject  to the head of the Patent Office.  It is often a nice and perplexing question.'

"Some discretion is not an unlimited discretion, and  if the discretion be  not unlimited it is reviewable.  In other words, the statute  gives the right to join inventions  in one application in cases where the inventions are related, and it cannot  be denied by a hard and fixed rule which prevents such  a joinder in all cases.   Such a rule is not the exercise of discretion; it is a determination not to hear. No inventor can reach the point of invoking the  discretion of the Patent Office.  He is notified in advance that he will not  be heard, no matter what he might be able to show. His right is denied, therefore, not regulated.  Such 'is the necessary effect of rule 41, as amended.
     
  "Without that rule the action of the Patent Office can  be accommodated to the character of inventions, and  discretion can be exercised, and when exercised, we may say  in passing except in cases of clear abuse, the courts will not review it."

  Can it be said that the Commissioner of Patents did not exercise his discretion in this  case?  The Commissioner  of Patents is authorized to establish such rules and regulations consistent with law as may be necessary for the proper conduct of his office.   (12  Stat., 200, sec. 19.)  The case  in question hinged  on  whether a certain rule  of the Patent Office was  consistent with law.  In establishing this rule and adhering  to it, the Commissioner  certainly had  to exercise discretion.  But it was  a discretion which could be and in fact was controlled by the court.  Again, suppose that instead of committing his determination to  deal with such cases  in the way he did to, paper, and embodying the same in the printed rules governing applications for patents, the Commissioner had made a mental reservation to that effect,  and that when this case came  up he had acted  in exactly the same manner and from exactly the same motive (which was his belief that such a ruling  was correct), by what means would the court have arrived at its conclusion that the respondent had not exercised his discretion?
 
  In Ballinger  vs. Frost (216 U. S., 240, 54 L.  ed., 464) (1909), the Secretary of the Interior sought to dispossess a member of an Indian tribe of certain land  which relator had acquired in accordance with  prescribed regulations of  the Department of the Interior.  Section 24 of, the Act of July 1, 1902, reads as follows:

"Sec. 24.  Exclusive jurisdiction is hereby conferred upon the Commission to the Five Civilized Tribes to determine, under the  direction  of the Secretary of the Interior, all matters relating to the allotment of land."

In this case the court said:

  "We have no disposition to minimize  the authority or control of the Secretary of the Interior, and the court should be reluctant to interfere with his action.  But as said by Mr. Justice Field  in Cornelius vs. Kessel (128 U. S.,  456, 461):

" The power of supervision and correction is not an unlimited or arbitrary power.  It can be exerted only when the entry  was  made  upon  false  testimony, or  without authority of law.  It cannot be exercised so as to deprive any  person of land lawfully entered and  paid  for.  By such entry  and payment the purchaser secures  a vested interest in the  property and a right to a patent  therefor, and can no more  be deprived of it by order of  the commissioner than he can  be deprived by such order of  any other lawfully  acquired property.  Any attempted  deprivation in that way of such interest will be corrected wheever the matter is presented so that the judiciary can act upon it.'

*       *      *       *       *      *       *

"Whenever, in pursuance of the legislation of Congress, rights.have become vested, it becomes the duty of the courts to see that those rights are not disturbed by any  action of an executive officer, even the Secretary of the Interior, the head of a department.  However laudable may be the  motives of the Secretary, he, as all others, is bound by the provisions  of congressional legislation.   It must  be borne in mind that this  allotment provided by Congress contemplated a distribution among the  Choctaw and Chickasaw Indians of  the lands that belonged to them in  common. They were  the principal beneficiaries,  and their titles to the  lands  they selected should  be protected  against the efforts of outsiders to secure them.  White men settling on townsites were not the  principal beneficiaries.  Congress, it is true, authorized townsites, and the town of Mill Creek was established in compliance with the statute.   It further provided for an enlargement of any townsite upon the recommendation of the  Commission to  the  Five Civilized Tribes.  That recommendation was made in respect to the town of Mill Creek, but disapproved  by the Secretary of the Interior.  Thereafter the relator  selected  the  land in controversy, a tract of forty acres, on which were  her improvements. Notice was given as required, and the time in which contest could  be made - nine months - elapsed. Thereupon, as provided by the statute, the title of the allottee to the land selected became fixed and absolute, and the chief authorities of the Choctaw and Chickasaw nations executed to her a patent, as required,  of the land selected. The fact that there may have been persons on the land is immaterial.  They  were given nine months to contest the right of the applicant.   They failed to make contest, and her rights  became fixed.  Thereafter the Secretary of the Interior had nothing but the ministerial duty of seeing that a patent was duly executed and delivered."

It was held in this case that under the circumstances the Secretary had nothing to do but to issue the patent.  Yet, in arriving at this conclusion the court was forced to consider the merits of the case  and to  determine (as the Secretary had  done) whether relator  was  entitled to it. The Secretary  erred in the application of the law to the facts before him so that the Supreme Court was compelled to issue the writ in order  to protect the private interests of the Indian.   The court  held that the Secretary of the Interior had nothing but the "ministerial duty "  of seeing that a patent was  duly executed and  delivered.  Suppose the Secretary had decided that the patent should issue and the "squatters" as  they  might be  called had applied for the writ to compel the Secretary to cancel the patent.  What view would then have been taken of this ministerial duty? Why not say  (as it is a fact) that the discretion exercised by the Secretary of the Interior was not a  sound legal discretion, guided by reason?

In Garfield vs. United States ex rel. Goldsby (211 U. S., 249,  52  L.  ed., 168)  (1908),  (followed  by the Court of Claims in Whitmire vs. United States and Cherokee Nation, 46 Ct. CL, 227) (1911), the writ was issued to the Secretary of the Interior to compel him to reinstate on the  roll of a  certain tribe of Indians entitled to participate in the division of certain lands, the name of one Goldsby who had first been regularly  placed  on the  roll and then  stricken off. By Act of March 3, 1901  (31 Stat. at L., 1077, Chap. 832), it was provided that the  rolls made by the Commission to the Five Civilized Tribes, as approved by the Secretary of the Interior should be final.  But the court said:

"We appreciate fully the purpose of Congress in numerous cases of  legislation to  confer authority upon the Secretary of the Interior to  administer  upon Indian  lands,  and previous decisions of this court have shown its refusal to sanction  a judgment interfering with the Secretary where he acts within the powers conferred by law.   But,  as has been affirmed by this court in former decisions, there is no place in our constitutional  system for the exercise of arbitrary power, and  if  the Secretary  has exceeded the authority conferred  upon him by  law, then there is power in the courts to restore the status of the parties aggrieved by such unwarranted action."

In Ex  parte Bradley (7 Wall., 364, 377, 19 L.  ed., 214) the court says:

"For we agree that  this writ does not lie to control the judicial discretion of the judge or court; and hence, where the act complained of  rested in  the exercise of this  discretion, the remedy fails."

Mandamus was issued, however, the court concluding in the following  language:

"But the  proceeding is admitted to be the recognized remedy when the case is outside of the exercise  of  this discretion,  and is one of irregularity, or against law, or of flagrant injustice, or without jurisdiction."

  Mr. Chief Justice Marshall, in Ex parte Burr (9 Wheat, 529, 630, 6 L. edv 152) speaking of the review of the proceedings of a lower court by the writ of mandamus said;

"The court is not inclined to interpose, unless it were in a case where the conduct of the  Circuit or District Court was irregular, or was flagrantly improper."

In Baird  vs. Supervisors  (138 N.  Y., 95)  it  appeared that the board of supervisors of Kings County,  in  which the city of Brooklyn is located, had divided the county into 18 assembly districts  as provided by  the law, but in such a manner that some of the districts  contained over three times  as many inhabitants as others.  It further  appeared that the board was. vested with discretion in defining these districts, and that the constitution as amended had omitted a clause providing for an equal population in each district. There was no specific law  to  control the supervisors in their decision.  In disposing of  the  questions presented, the court said:
     
"The  proper discharge  of the  duty of division by  the board  implies  considerable discretion  in the formation of the  various districts.  The  discretion exercised  must  be an honest and a fair discretion, arising out of the circumstances of the case, and reasonably affecting the exercise of the power  of equal division.   Before examining any division, it  would be a prima facie presumption  that  the division actually made in any case was a proper  one, and a  full  compliance with the duty imposed upon the board which  made it.   This  would be  in accordance  with the presumption in favor of the due  and  proper discharge of official duty.  Nor would the mere fact that the districts were to some extent unequal in population necessarily rebut this presumption.   The necessity  of considering the  other facts provided for by the section and already alluded  to, might  reasonably  account for many  and even somewhat large aberrations from fhe initial point of equal representation.   While it is impossible, in the nature of the case, to accurately  describe  and  closely limit  the amount of deviation from an equal representation that the practical working of the  Constitution may in this  respect permit, it is on the other hand sometimes quite  possible to say of a particular example  that it does or does not violate the constitutional mandate.

"We have no trouble whatever in detecting the difference between noon and midnight,  but  the exact line of separation between the dusk of the evening and the darkness of advancing night  is not so easily drawn.
     
"A question of a  somewhat similar nature was before us in People ex  rel.  Carter vs. Rice (cited supra).  [135 N. Y., 478, 494.]   The question there related to the amount of discretion reposed  in the legislature in  the creation of senate districts  and  in  the apportioning of  members of assembly among  the several counties.  It was  there stated that it was not intended to intimate by the decision then made that in no case could the  action of the legislature be reviewed by the courts, and that cases might easily be imagined where  the action of the legislature would  be so gross a violation  of the Constitution that it was  plain that instrument had been  entirely  lost sight of or intentional disregard of its  commands both  in  the letter and in the spirit had been  indulged in.   If  there  were an  abuse of discretion so as to clearly show an. open and intended violation of the Constitution, we held in that case that the courts might interfere.

      *       *      *      *       *       *       *

"We do not  intend by this  decision to hold that every trifling deviation from equality of population would justify or warrant an application to a court for redress.  Such, we think, is  not the meaning of the provision.  It must be a grave, palpable  and unreasonable  deviation from the standard, so that when the facts  are presented  argument would not be necessary to convince'a fair  man  that very great anjd wholly unnecessary inequality has been intentionally provided for."

In  People ex  rel. Schau  vs.  McWilliams (185  N. Y. (1906), 92)  the  writ was asked for to compel the board of civil service to change a classification it had  made of a particular position.  The court said

"It does not at all follow that  the action of  the  civil service  commission  is not in any case subject  to judicial control;  but that such control  is a  limited and  qualified one to be exercised by mandamus.  If the position is clearly one properly subject to competitive examination, the commissioners may  be  compelled to so  classify it.  On the other hand, if the position be by statute or from its nature exempt from examination and the action of the commission be palpably illegal,  the  commission may be  compelled to strike  the position  from the competitive  or examination class, though in  such case  redress by mandamus  would often be  unnecessary,  as a  valid appointment could be made notwithstanding the classification.  But  where the position is one, as to the proper mode of filling which there is fair  and reasonable ground  for difference  of opinion among intelligent and conscientious officials, the action of the commission should stand, even though the courts may differ from the commission as to the wisdom of the classification.  The present case is of this character.  We ought not to interfere with  the determination of the commissioners that it  should be filled by competition; and if they  had decided that the  position should be filled without competition, equally ought  we to refrain from interference.   The position lies in that field where the action of the commission should be final."

The writ was accordingly denied.
   
In People ex rel Lodes vs. Dept. of Health (189 N. Y. (1907), 187) the board of health had revoked a license to sell milk,  without either giving a hearing or notice to the licensee.   The court  said:

"The powers  of thie members  of  the board of health   being administrative merely, they can issue or re.voke permits to sell milk  in the  exercise of their best judgment, upon or without notice, based  upon such information as they may  obtain  through their own agencies, and their action is not subject to review either by appeal or by certiorari.  (Child vs. Bemus, 17 R. I., 230; State ex rel Cont. Ins. Co. vs. Doyle, 40 Wis., 220; Wallace vs. Mayor, etc., of Reno,  63  L.  R.  A.,  337.)   If,  however,  their  action  is arbitrary,  tyrannical and unreasonable,  or is  based upon false information, the relator may have  a remedy through mandamus to right the wrong which he has suffered.

In People ex rel. E. C. T. Club vs. State Racing Com. (190 N. Y. (1907), 31)  respondents had refused to grant relator a license to conduct races on the ground  that the  racing season had been divided between  six other clubs and that to grant relator a license would mterfere with the  racing upon  other tracks.  By an  order of  the special term, the writ prayed for was denied.  An  appeal was taken  to the Appellate Division, where the special term was reversed, and order for the  writ issued.   On appeal to the Court of Appeals, this  latter order was affirmed.  The court said (per curiam):

"Though we do not concur in the doctrine of the majority of the learned Appellate Division  that the  commission has no  discretionary powers over the grant of a  license and that 'its judgment related purely to  the sufficiency  of the acts constituting the corporation, and not to considerations of public or private policy/ we are still of opinion that the order  of  the  Appellate Division should  be affirmed. While  the  general rule  is that  mandamus will not lie to compel the performance of  a power the  exercise of  which lies in the  discretion of the officer against whom the writ is sought, to that rule there is the well-recognized exception that the action of the  officer  must  not be capricious or arbitrary, and if  such be the character of  the reasons for refusing to act the writ will lie.  (Merrill on  Mandamus, sees. 38-41; People ex rel. Cecil vs. Bellevue Hospital Medical College, 60 Hun., 107; affd. on  op. below, 128 N. Y., 621; People ex rel Schau vs. McWilliams, 185 N. Y., 92; Illinois State Board of Dental Examiners vs. People ex rel Cooper, 123 111., 227.)   *  *  *  Though we assume that the appellants have acted in entire good faith and in the belief that  they possessed the authority they have sought to exercise, we must nevertheless hold that in  point of law their reasons for rejecting  the application of the relator were capricious and arbitrary."

In Huidekoper vs. Hadley  (177 Fed. (1910), 1)  the court  said:

"The rule is well settled and fully recognized by us that when discretion is conferred upon public agents or officers their acts in the lawful exercise of that discretion cannot be controlled by mandamus.  The rule is  also well settled that, although the exercise of discretion will not be controlled  by mandamus, yet the writ will lie to compel the person  or the body in whom the  discretion is  lodged to proceed to  its exercise.  In  view  of these rules, we  are of  opinion that the discretion which cannot  be controlled by mandamus  is  that discretion, and that  only, which the law has vested in the person 6r body to  be exercised. If the law  has  pointed out how or in what  way the discretion shall be exercised, it is obviously not the exercise of the discretion imposed by law to proceed in any other way. To so proceed would  be contrary to the law and would be the exercise of arbitrary  power rather than discretion. Tp decline or refuse to proceed according to law or in  the way pointed out by law, is  in our opinion equivalent  to not proceeding at all.  In other words, the discretion which will withstand review by the courts must be exercised under law and not contrary to law." In Dental Examiners vs. The People ex rel. Cooper (123 III., 227)  quoted in People ex rel E. C. T. Club vs.  State Racing  Com., supra, the court said:

"In the People ex rel. Sheppard vs. State Board of Dental Examiners  (110 111., 180), we held  that the  act did not specifically define what was  a reputable college, and that it was left to the discretion and judgment of the board to determine what was a reputable  college.  In that case the mandamus was refused on the general ground, that the writ will not lie to compel the performance of  acts or duties, which necessarily call for the exercise of judgment and discretion on the part of the officer or body at whose hands their performance is required.

"But if a discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise.  They will interfere, where it is clearly shown that  the  discretion is abused.  Such abuse of discretion will be controlled by mandamus. A public officer or inferior tribunal may be guilty of so gross an abuse of discretion or such an evasion of positive duty, as to amount to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law; in such a case mandamus will afford a  remedy.   (Tapping on Mandamus, 66 and 19; Wood on Mandamus,  64;  Com'rs. of the Poor vs. Lynah, 2 McCord (S. C.), 170; The People vs. Perry, 13 Barb., 206; Arberry vs. Beavers, 6 Texas, 457.)"

In City of Atlanta vs.  Wright (119 Ga. (1903), 207)  an attempt is made to reconcile the supervisory control by the judiciary with the statement that "courts will not control the exercise of discretion."
     
"It has been generally, if not universally, held, that the writ (mandamus) will not lie to control the discretion of an officer vested with judicial powers, or powers which, in  their nature, call for the exercise of judgment in  their performance.   The writ  'may set him  in motion,' but 'it will not further control or interfere with his action, nor will it direct him to  act in any specific manner.'   (High's  Ext.  Leg. Rem.  (3d ed.), sec. 34.)  'To do so would be to substitute the judgment and discretion of the court issuing the mandamus for that of the court or officer to whom it was committed by law.'   (19 Am. & Eng. Enc. L. (2d ed.), 733-4.) There is but one exception to the rule that the function of the writ is to set in motion, and not to control the discretion of the dfficer to whom it is directed, and that is where the discretion reposed in the officer has been grossly abused, or has been arbitrarily  or  capriciously exercised.  In  such a case mandamus  will lie to compel the proper exercise of the powers granted.  (19 Am. & Eng. Enc, L.  (2d ed.), 737-9.)  This exception  is more apparent than real, for such an exercise of power really amounts, in a legal sense, to no exercise, and the writ may still be said to only set the officer in motion." 

But in California as  early as 1888, the court held in  Wood vs. Strother (76 Cal., 545, 9 Am. St. Rep., 249) that such a construction was a  "misuse of language."

"The argument against the writ is,  in substance, that the statute requires the auditor to examine the proceedings, and satisfy himself that they are legal, before signing; and that if he has examined them and become  satisfied that  they are not legal, the most that can be said is, that he has committed an error in a matter confided  to his discretion, and that the function of the writ is not to review such exercise of discretion.

"It must be acknowledged that this argument is exceedingly plausible.  There are innumerable cases in which it has been laid down that mandamus cannot issue to control discretion.  The rule - which is undoubtedly correct  when properly understood - has been expressed in various forms. It has been repeatedly said that the writ cannot perform the functions of a writ of  error; that it cannot issue to revise judicial action, but  can only compel the performance of ministerial functions; and that it will issue to compel a tribunal to act in some way, but not in any particular  way. These  formulas undoubtedly express a truth,  but they express it in an inaccurate and misleading manner; and by reasoning from them as if literally and in all cases  true, courts have sometimes been led into  error, and have frequently been forced to  call  acts 'ministerial' which are plainly not so.  An examination of the authorities  will demonstrate the inaccuracy, of the above phrases.

*       *       *       *      *      *      *

"So it is well settled that a mandamus may issue to compel a judge to sign a bill of exceptions (California citations). Whether the party has a right to have a bill, or whether it is in time, are certainly judicial questions, and they are to be decided in the first instance by the  judge,  who, if  he decides them correctly, will not be compelled by the writ to take back his  decision.   (Clark vs. Crane, 57  Cal.,  629.) Is anything gained by calling such decision a 'ministerial' act?"

In this  California case the  writ  was issued to  compel the auditor to countersign a street-assessment warrant under a certain act.   The act provided that the auditor should countersign  the warrant, "who, before countersigning it, shall examine the contract, the steps taken previous thereto, and the record of assessments, and must be satisfied  that the proceedings have been legal and fair."  The auditor claimed that he was not "satisfied that the proceedings upon which the same is based are or have been legal or fair."  The court decided adversely to the  auditor and  issued the  writ.

In Com. ex. rel. vs. Philadelphia (176 Pa. (1896), 588) the petition prayed for a mandamus to compel the controller of the city of Philadelphia to sign warrants for the payment of $10,000 for Century Dictionaries  alleged to  have been contracted for by the board of education.  The respondent alleged first, that having exercised his discretion in refusing to sign the warrants he was not subject to the order or direction of the court.  And second, (1) that it appeared that no contract had been made for the purchase of the books as required by a certain act,  (2) that the binding of the books was such as to render them entirely unserviceable for school use, and (3) that it was learned a very large commission had been allowed to the agent who sold the books.  The  court directed the  issuance of the writ unless the respondent showed  further and  legal grounds why  it should not and remarked:

"The answer appears to be based on a very exaggerated and erroneous idea of the controller's powers and authority, and the claim that he is 'not subject to the order or direction of the court' is not to be tolerated.  The duties of the controller as  was held in Com. vs. George (148 Pa., 463), are partly ministerial  and partly discretionary, and while the courts will not review  his  discretion exercised in  a proper case, yet he is not above the law, and his discretion is not arbitrary but legal.  When therefore he is called upon by the. courts the facts must be made to appear sufficiently to show  that they bring  the case within his discretion, and that it was exercised in obedience to law.  On this  subject the courts are  the  final  authority, and their jurisdiction cannot be ousted  by simply  putting forth the  assertion of discretionary  power without showing that the matter was properly within such discretion."

In the late case of State ex rel. Mauldin vs. Matthews (81 S.  C., 414, 62 S.  E. 695, 22 L. R. A., n. s., 735)  (1908), the Supreme Court of South Carolina affirmed its right to supervise  the discretion vested in a public  official  in the following language:
   
"Whether the courts can control the action of officers or official boards vested with discretionary power when they refuse to  act in  consequence of  a conclusion they have reached which is  without any foundation  in the facts before them, and therefore, in the view of the court, capricious or arbitrary, is  a  question of some difficulty.  But it must be answered in the affirmative, on principle as well  as authority.  This was the view  indicated not only in State ex rel. Smith vs. Matthews, supra, and Commissioners of Poor vs. Lynah  (2 McCord, L., 170), but by Lord Mansfield in R. vs. Askew  (4 Burr., 2186,  16  Eng. Ruling Cases,  760), where the application was to  compel the  admission of a physician to practice; and it is in accord with the weight of authority.   (Ex parte Burr., 9 Wheat., 529, 6 L. ed., 152; Ex parte Virginia, 100 U. S., 339,  25  L. ed., 676; Ex parte Bradley, 7 Wall., 364,19 L. ed., 214; Atlanta vs. Wright, 119 Ga., 207, 45 S. E., 994; St. Louis Meyrose Lamp Mfg. Co., 189 Mo., 660, 61 Am. St. Rep., 474, 41 S. W., 244; Wood vs.Strother, 76 Cal., 545, 9 Am. St. Rep., 249, 18  Pac., 766;        Illinois State Dental Examiners vs.  People, 123  111., 227, 13 N. E., 201.)  The courts should exercise, however, the utmost circumspection not to substitute their own discretion for that of the officers or board whose refusal  to  act is under consideration, and to interfere by mandamus only when  the facts so  clearly show the duty of the  officer or board to act that there is really no room for the exercise of reasonable discretion against the doing of the act  which the court is asked  to require  performed.  In other words, the courts should interpose only where it  clearly appears that the officer or board refuses to perform official duty, or so  misconceives official  power or duty that the purpose of the law will be defeated."

Where a statute authorized county boards to make allowances  for public  purposes "at their  discretion" the  court said:

"The words to 'make allowances at their discretion,'  * * *  mean to make  allowances according  to law,  at  their discretion.   They do not mean an arbitrary,  uncontrolled, unlimited discretion, contrary to law, or without authority of law; for where there is no law there is no act to do, and, therefore, no discretion to be exercised.   They mean a legal discretion, not a personal discretion; for to allow the board a personal discretion would give them the power  to  make law."  (Rothrock vs. Carr, 55 Ind., 334.)

Quoting  further  from  City of Atlanta vs. Wright,  ubi  supra:

"It will have been observed that the petition  does  not complain of official inaction or inertia.  On the contrary, the contention is that the comptroller-general has acted, but in the wrong manner, and that the course pursued by him has resulted injuriously to the petitioner.   In other words, the ground relied on for the issuance of the writ  of  mandamus is that whatever discretion was  vested in  the comptroller-general has been exercised in an arbitrary and capricious manner, and that the court should  step in and direct him to Act as required by law."

The court reviewed the facts, found that the comptroller- general had erred in his conclusions of law as applicable thereto, and issued the writ.
   
A similar conclusion was arrived at in State ex el. Register of Lands vs. Secretary of State (ex officio auditor) (33 Mo., 298).  The register of lands had performed  certain services for which he was to be paid at certain rates.   The auditor as his  reason for refusing to audit the  claim presented by the register, alleged among other things, (1) that the rate of compensation claimed was not that fixed by law, and (2) that the work had been improperly  done.   The court,  in reviewing the claim on  mandamus, decided (1) that the rate of compensation claimed was that fixed by law, and (2) that the  quality of  the work was not within the purview of the respondent.
 
In People vs. Supervisors  (73 N. Y., 173) the auditing board had allowed excess compensation to a county treasurer, and the writ  issued compelling the board to reconsider, revoke, and annul  the audit so far as it allowed the county treasurer compensation in excess of that fixed by law;
 
In State ex rel. Davis vs. Disk Ct. (30 Mont. (1903) 8), it appeared that a client on becoming insane was indebted to an attorney for fees.  The guardian appointed could not allow the same until authorized to do so by the court, which the latter refused to do.  The Supreme Court reviewed the action of the lower court, found that the claim was lawful and should be allowed and issued the writ accordingly.
 
Other courts have issued the writ for an abuse of discretion:
 
Missouri: State ex  rel. Hathaway vs. State  Board of Health,  103 Mo., 22,15 S. W., 322; State ex rel Kelleher vs. St. Louis Public Schools, 134 Mo., 296, 35 S. W., 617, 56 Am. St. Rep., 503; State ex inf. Folk vs. Talty, 166 Mo., 529, 6Q S. W., 361; State ex rel. vs. Roach, 230 Mo. (1910) 408.
 
  Wisconsin: State ex  rel.  Wagner vs. Dahl,  140 Wis., 301; State ex rel  Fourth National Bank vs. Johnson, 103 Wis. (1899), 591, 51 L. R. A., 33,  79 N. W., 1081.
 
  Utah : Taylor vs.  Robertson, 16  Utah, 330, 52 Pac,  1, 3.
 
  This court says that:

    "Mr. Spelling, in his work on Injunctions and Other Extraordinary Remedies, in a very learned and extensive discussion of the questions now before us, says, that mandamus will not lie in any matter requiring the exercise of official judgment or resting in the sound discretion of a person to whom a duty is confided by law, either  to control the exercise of that discretion or to determine the decision which shall be finally given."

It will be  noted that the court uses the words  "official judgment" and "sound discretion."

Mr. Spelling, section 1384 (2nd ed.), says:

"While  the general  proposition is true that mandamus cannot be employed to control the exercise of discretion, yet it is often used to correct abuses of discretion  when it has been made clearly to appear that the officer refusing to do the act has either not exercised his discretion at all, or has willfully chosen to act in manifest disregard to duty and the legal rights of individuals." 

Mr. Spelling here directly supports the views taken by the various authorities cited by me.

This court also  quotes  from Mr. Merrill on Mandamus. This  same author, in  sections 40  and 41, recognizes the authority of the courts to control the actions of officers when there is an  abuse of discretion.  But  he says before the court should interfere the proof must be very clear and convincing that  such an officer has grossly abused the discretion conferred upon him.

Again, the court cites and quotes from Mr. Sanborn's article on mandamus, but the court did not quote  the following from Judge Sanborn's article on mandamus, wherein he says:

"An exception to the general rule that discretionary acts will not be reviewed or controlled exists when the discretion has been abused, for example mandamus may in a  case be granted where  the action has been arbitrary or capricious or from personal selfish motives, or where it amounts to an evasion Qf a positive duty, or there has been a refusal to consider pertinent evidence, hear tjie parties when so required, or to entertain any proper question concerning the exercise of the discretion.  Likewise it has been held that mandamus may issue where discretion has been exercised on questions not properly  within it, or where the action is based upon reason outside the discretion  imposed."   (26 Cyc, 161.)

So this learned author also is in accord with the holdings of the various courts as above set forth.

Where anything is left to any person to be done according to his discretion, the law intends it  must be done with a sound discretion and according to law.  The discretion conferred upon officers by law is not a capricious or arbitrary discretion, but an impartial discretion guided and controlled in its exercise by fixed legal principles.  It is not a mental discretion to be exercised ex gratia, but a legal discretion to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.

As a matter of fact, it is necessary for a public officer to exercise his own discretion and judgment as to whether a certain state of facts exists, even in the performance of a so-called ministerial duty.

"The duty is ministerial when it is  to be performed upon a certain state of facts, although the officer or tribunal or body must judge according to their best discretion whether the facts exist, and whether they should perform the act. Otherwise it is obvious  no mandamus cotild ever lie in any case."   (26 Cyc, 161, note 10.)

If, then, the officer must determine whether a certain state of facts actually exists before he can perform a  "purely ministerial" duty, it would seem that the only difference between the discretion which he thus exercises and that conferred upon him by express  law is one of degree and not of kind.  In the laws the duties of every officer are outlined as completely as human skill can do it.  Yet, in the nature of things, doubts often arise as to what is the correct procedure under the laws.  A public officer, on taking office, must necessarily be the first to interpret the laws relating to his position.  When the time arrives for him to perform any one of his duties, he must first act or refuse to act before anyone else can take jurisdiction.  Some of the duties prescribed for him by the  laws are  so plain as to practically admit of no argument   These are generally called ministerial duties.   Still, it requires the exercise of personal judgment to decide on the time, manner, and extent of performance.  From  these well-defined  duties,  which involve the exercise of so little judgment and discretion on the part of the officer, to those which may be performed in any one of a number of different ways, and therefore necessarily requiring a high degree of judgment, sagacity, and prudence in their performance, is a long step.   But where can the line be drawn?  The plainest and best defined  duty of an officer requires that he recognize it as such.  He must satisfy himself that  the facts of the case combine in such  a way  as to require its performance.  Such being  the  case, the division  of his duties into those ministerial  (that is, those very plain and well defined), and those discretionary (that is, those very hard or impossible to exactly define), serves only to confuse the mind and to establish a division of his duties which leaves a large share of them open to profitless dispute.   It is  much nearer the truth to say that a public officer exercises his own  discretion and judgment in the discharge  of all his duties.  He interprets  the law affecting him in the exercise of his official powers and acts according to that interpretation.   If a dispute arises as to whether he has correctly interpreted the  law applying to a particular  case,  his action is subject to review by the courts,  it being their duty to construe the law.  It must not be assumed, however, that a person who is dissatisfied with  the  performance of a  duty by a public officer will always obtain relief by mandamus.  Nothing could be more impracticable or foolish than to impose upon the judiciary the task of reviewing every decision of fact and law made by public officers in the discharge of their duties.  They are presumed to exercise their powers in a legal and equitable manner.  To encourage disgruntled claimants to press their claims in court would be to virtually transact all the business of the government in court.  Such  would be  the  result if the courts undertook to review the merits of  every controversy  settled by public officers.  For  slight errors of judgment on the part of public officers there can be, in the nature of things,  no redress for the individual in the courts.  In reviewing such acts on a petition for mandamus, courts require the relator to prove his case by much more than a mere preponderance of evidence.  The abuse of official discretion must  be  manifest.  It must  be  clear that the officer has  acted in an arbitrary and  illegal manner. The facts upon which relator bases his petition must combine in such a way that it will be evident that the law and equity require that he be granted that for which he prays.
   
  The majority opinion states that for the courts to compel the Auditor to allow, or disallow a claim against or in favor of the Government would be to substitute the courts as the accounting officers of the Government.  How many claims, reviewed  by the courts under a method which requires the claimant to produce such a great preponderance of evidence, will be allowed  against the decision of the Auditor?  The Auditor passes  upon thousands  of claims every year.   If the courts, adhering to this rule  of evidence, were to overrule the Auditor in such a number of cases as to amount to a  substitution, what manner of man would the Auditor be? Or would  overruling his decisions in one instance or twenty instances  out of thousands be a  substitution of the courts for the Auditor?  Restricted as  the writ of mandamus is by the rules of evidence I have just stated, the Auditor, or any other  public officer, has far more latitude in guiding his official conduct and performing his official duties than have the judicial bodies whose decisions are subject  to review by an appellate tribunal.  The decisions of lower courts are reviewed in the higher court by a strict preponderance-of-evidence rule (in  civi]  cases).  Nevertheless, can it be asserted that the appellate tribunal is a virtual substitution for those lower courts?  How many cases,  out of all those decided by the judicial  bodies, even  with this narrowing of the field of official discretion, reach the appellate tribunal? I think that the fear that the courts will ever usurp the prerogatives of a public officer by the writ of mandamus, issued in proper cases, is groundless.

But it may be argued that in all the cases from which I have quoted above  it  was found  that the  officer,  board, or tribunal was acting without authority and consequently that that discretion vested in them by law was never exercised until set in motion by the writ of mandamus.   Upon this reasoning it follows that when  the  courts review  by mandamus the conduct of such an officer, whether the duty is declared to  be discretionary  or  ministerial will depend upon the action the officer has taken: if the courts decide such act is in harmony with the law under which his discretion was granted, they will declare the duty to be of a discretionary character and refuse to interfere; but if they decide that such act is repugnant to the law, they  will point out what is the duty of the officer under the law and instruct him to act accordingly. The law intends that the  officer shall act with fairness and justice, yet, as I have shown, it is not every slight  injustice  resulting from an exercise  of such discretion which  the courts will correct.  The  courts will not interfere where it is necessary to weigh the evidence and decide on which side a nice preponderance lies.  A strict adherence to such a rule would, however, require the courts in every case to go into the merits and decide on which side the preponderance lies,  exactly the same as in any ordinary case.   In the meantime, the  officer has, presumably,  acted in good faith, according to what he believed to be right and just.   Yet if the court decides that there has been a wide departure from the intent of the law, it must be held that he acted without discretion.   In such case, what did prompt him to act? It may be true that he acted without that legal discretion which is  all the law can confer upon him.   But discretion is no concrete thing to be conferred or transferred as a piece  of land or a commission to office.  It is a trait of character bestowed by nature upon all men in a greater or less degree.  If  the law permits an officer to  act with discretion, he must necessarily use that discretion.  He can, in the nature of things, use no other.  Legal discretion is, after all, nothing but a man-made standard for measuring and keeping within bounds the personal discretion of such public officers.  If  they fail to make their official acts conform to this standard, they will be called to account.  For political or legislative acts, they are responsible directly to the people.  But if it be administrative and properly within the jurisdiction of the courts, the courts  will provide the remedy.  It is, of course, possible that such an officer might not obey the dictates of his own discretion and act in accordance with the promptings of corrupt motives.  But in mandamus proceedings  there is no legal difference between acts done virtute officioand acts done colore officii.  Thus, a board cannot require other credentials for an applicant to practice medicine than those required by law.  (State ex rel. Johnston  vs. Lutz, 136 Mo., 633.)  (See  also State  ex rel City  of Chillicothe  vs. Gordon, 233 Mo., 383;  Cox vs.  Common Council of Jackson, 152 Mich.,  630; Swan vs.  Wilderson, 10 Okla., 547,  62  Pac, 422.)  In the case mentioned,  as well as in the other cases cited, the board was prompted by only the most laudable motives.   They were attempting to raise the standard of professional skill required for the practice of medicine and surgery within the State of  Missouri.   They read the law in which their powers and duties were outlined and at a regular and official meeting decided upon requiring certain qualifications which the  court  in the mandamus preceedings decided were plainly not required by the law.
   
Guided by the doctrine enunciated in the foregoing decisions of the highest tribunals in the American Union, which are founded upon reason, justice,  and the law, let us now again inquire whether or not the respondents decision denying the relator's request for  a  certificate of clearance  is based upon sound  discretion and  the law, or whether he grossly abused the legal discretion conferred upon him and erroneously interpreted the law in reference to his powers    and duties.   This decision of the respondent is based upon the "probable civil suit which one Fernandez might bring against the Government"  and that if he had issued the certificate of clearance the Government,would have had to pay the relator the amounts due him for  accrued leave, salary, and transportation.  The Auditor, after an investigation and having the facts before him, decided that these were sufficient reasons for him to decline  to issue the relator's clearance.  I concede that the strict rules of evidence which govern the courts of justice do not apply to the respondent. The position of the Auditor for the  Philippine Islands is one of great delicacy and difficulty where there is a suspicion of fraud or  dishonesty against an officer. He should be allowed to consider not evidence, merely, as recognized in the courts, but suspicions prompted by his own investigation of the officer's accounts,  as well  as  accusations made by others. But the courts have often held that the  evidence upon which  accounting officers have settled claims  in a particular way was insufficient.  Thus, in the United States vs. Dumas (149 U. S,, 278, 37 L. ed.,  734) the Postmaster-General, who was authorized by the law to examine and pass upon the accounts of postmasters; declined to audit the accounts of the defendant in error, claiming that said defendant had made  false returns of business done.  The court in its  decision  overruling the decision of  the Postmaster-General, quoted the following from United States vs. Barlow (132 U. S., 271, 280, 33 L. ed., 346, 351), per Mr. Justice Field:

"We admit that where matters appertaining to the postal service are left to the discretion  and judgment of the Postmaster-General, the exercise of that judgment and discretion cannot  in  general be interfered with, and the results following  defeated.  But  the very rule supposes  that  information upon the matters upon which the judgment  and discretion are invoked is  presented to the officer  for consideration, or knowledge  respecting them is possessed by him.  He  is not at liberty, any more than a private agent, to act upon mere guesses and surmises, without information or knowledge on the subject."

Here the rule that the accounting officer must have something tangible  upon which to base his decision is clearly recognized.  Fernandez, as I have said, could not bring a civil suit against the Government without its consent.  No argument is necessary  to  support this proposition.  Furthermore, "the transactions which would form the basis of this probable  civil suit fall within the period from September  5, 1909, to  November 17, 1910," and Fernandez had signed vouchers and a warrant of payment, acknowledging to have received in full  from the Government the amounts claimed by him.  The respondent had issued  to the relator a certificate of clearance  covering the period from September  5, 1909, to  November 17, 1910.   Could the respondent deny the  relator's  request for a  clearance  upon  this ground  and at  the same time exercise  that legal or official discretion conferred upon him by law?  Surely, no one can seriously contend that this  could be  done, either upon principle or authority.   And more especially, when it is remembered that the decision  of the  respondent has  the effect of depriving the relator of his liberty.  I  think  judicial notice should be taken of the peculiar conditions existing in this country in  the matter of bonded officers of the  Government.   They are continually leaving the Islands, either on leave  of absence or on separation from the service.  They usually have a large amount due from the Government in the form  of accrued leave,  salary, and transportation, which they depend upon  to defray their expenses.   The effective date of  their resignation or of the commencement  of their accrued leave is generally timed a few days in advance of their actual  departure from the Islands, so that among the last matters they must arrange before leaving  is a clearance from the Auditor.   For the Auditor to refuse this clearance places these  officers in a  difficult position and subjects them to great disappointment and more or  less pecuniary loss. For these and kindred reasons, such a refusal on the part of the Auditor should  not be based upon frivolous pretexts.   It   is only justifiable on reasonable grounds.  Act  No. 1605 makes it a criminal offense for a bonded officer to leave or attempt  to  leave the Islands without  a  clearance.  It  is therefore plain  that the Auditor has the power to cause great hardship to all such officers.  This power should be exercised wisely and justly.  To assert,  as the majority opinion does, that the Auditor's action cannot be controlled for any reason in this particular by the courts, is to make that officer the absolute master of the persons of such officers for an almost indefinite length of time, or, as the majority of the court hold, for the period of three  years.   Think of the position of an officer who has separated himself from the service and who is anxious to return to his home being held virtually as a prisoner for the period of three years, awaiting the action of the Auditor.  Can such a state of affairs and Act No. 1605 withstand the great principle that no one shall be deprived of life, liberty, or  property without due process of law?   But it is said that if the respondent be compelled to issue this certificate of clearance the Government  will have  to pay the relator his  claims for accrued leave, salary, and transportation, and  the result  would be that these proceedings against the Auditor would be a suit against the Government without its consent.  If it is right and just that these  claims should be  paid, then who can object?  The Government  itself has expressly declared in a solemn act that the relator is entitled to and shall receive these amounts.   The Government has  appropriated money for these purposes.  It  stands ready and willing to make the payments.   Where the Government, by legislative action, declares that an officer shall  receive fixed amounts for his services, such as. salary, accrued leave, and transportation, and where an appropriation is made by the legislature setting aside money for these purposes, an action brought against officers of the Government whose duty it is to countersign warrants or issue certificates, or to actually pay out this money,  is not a suit against the Government.  It is an action against the respondent officers to compel them to perform  a duty imposed upon them by law.   (Rolsten vs. Missouri Fund Commissioners, 120 U S,, 390,  30 L, ed., 721; Tindal vs. Wesley, 167 U. S., 203, 42 L. ed., 137; Pennoyer vs. McConnaughy, 140 U. S., 1, 35 L. ed., 363; Graham vs. Folsom, 200 U. S., 248, 60 L. ed., 464; Taylor vs. Louisville & N. R. Co., 31 C. C. A., 537, 88 Fed., 350;  Huidekoper vs. Hadley, 177 Fed., 1.)  Also see a long array of  cases cited in 11 Enc.  U. S. Sup. Ct. Rep.,  50, note 47.

As has been said, respondent,denied relator's request for a clearance upon the ground that a probable suit might be brought against the Government by one Fernandez and that if he should issue the certificate the result would  be that the relator would receive the amounts claimed for accrued leave, salary, and transportation.  The Auditor had to  exercise some judgment and discretion in reaching this  conclusion. According to his interpretation of the law, it was his duty under these facts to deny the relator's request.   This court says that the Fernandez probable suit "seems to be a good reason" for the Auditor's refusal, and that in all these matters relating to claims for or against the Government the Auditor must and does necessarily exercise judgment and discretion which cannot be reviewed nor controlled by the courts.  If this were the rule in the United States (it is not, however),  there exist well-founded  reasons why the rule should be different in this jurisdiction.  Among these is the fact that under the provisions of Act No. 1605 the officer is held virtually a prisoner during the pendency of the issuance of his certificate of clearance.  There is no such law, either state or national, in the American Union.   If this Act No. 1605 be held to be constitutional, then the courts  must intervene in those cases where a citizen is deprived of his liberty in this manner. Why not say,  as it is an absolute fact, that the Auditor, no doubt in good  faith, has abused his discretion and erroneously interpreted the law as to his powers and duties, and that this court, being the highest tribunal in this country and being clothed with the power  to interpret the laws, not only has the power to intervene, but that it is its sacred and solemn duty to do so.  In the majority opinion are cited a long array of cases in support of the court's position that the judgment and discretion of the respondent in these matters cannot be reviewed.  I. confidently believe, after an examination of a number of these authorities, that not a  single one is applicable to the admitted facts in this case.  On the contrary, it is held by practically all of the high courts in the  United States that the courts will intervene and  control the action of all administrative officers lower than the Chief Executive, where it  clearly appears that such officers have grossly abused their discretion or erroneously interpreted the laws, and the injured party has no other plain, speedy, and adequate remedy.   This, at least, is the modern holding of every court  of last resort, the decisions of which I have  had an opportunity to examine.
   
  In this jurisdiction, we have an express provision of law (Sec. 222 of Act No.  190), authorizing the courts to issue the  writ of mandamus to  any inferior tribunal, corporation, board, or person.  This court has said that it will not interfere with the acts of the  Governor-General.   This holding, as I have said, was based  upon political necessity and public policy.  But the respondent has no political duties to perform.   He is not a political officer, and the reasons  upon which the decision in the  case against the Governor-General rest cannot by any means be extended to the respondent.

ANOTHER  ADEQUATE REMEDY.

This court, in its conclusions, holds that the remedy by appeal provided in Act No.  1792 to the aggrieved party to the Governor-General and the Secretary of War is another remedy in the ordinary course of law, and is speedy and adequate  and exclusive.  Before the promulgation of this decision, the statute read  "in  the ordinary courts  of law." But it now reads "in the ordinary course of law."  If the statute stood in its original form, there could be no  question. The offices presided  over  by  the Governor-General and the Secretary of War are not  courts of law.  Neither an appeal nor writ of error would lie to  this court from the decision of the respondent in any case.  So the relator not only did not have another  plain,  speedy,  and adequate remedy in the ordinary courts  of law, but he had no other remedy whatever in the courts.

We will now examine the question from the standpoint of the article as  corrected by the  majority opinion.  Is the remedy by appeal under Act No. 1792 plain, speedy, and adequate?  It  appears to  be plain,  as the procedure is specifically and definitely pointed out.  It is adequate, in the sense that the Governor-General  and the Secretary of War would doubtless overrule the  Auditor if his decision was contrary to law and equity.   But is it speedy?  Before the writ can be denied upon this ground, the remedy must be adequate; it  must be  plain; and it must be speedy.  All three.  If either is lacking, the  writ must  issue.  In my opinion, the remedy is neither adequate nor  speedy in contemplation of Jaw.  The relator being held virtually as a prisoner, seeks complete relief, and  that immediately.   The appeal provided for in Act No, 1792 is that  from the decision of the respondent to1 the Secretary of War through the Governor-General.  In  the  ordinary  course of the transmittal of official matter, it would take about two months for the appeal to reach the Secretary of War after  it had been entered.  But a few days must necessarily elapse before the Secretary would pass upon  the appeal.   Then at least forty days more would be required for the Secretary's decision to be returned to the respondent, and if the decision  be favorable to the relator, how long would the respondent take in issuing the certificate?  He might and could  very  well, under the decision of this court, refuse absolutely to issue the certificate upon the ground of newly discovered evidence or that in his judgment the interests of the Government required that the accounts as they would then stand balanced should be reopened and reconsidered, notwithstanding that he had been reversed  by the Secretary of War.  Then another hearing would  have  to take  place; another appeal, and probably  another reversal.  There would be no end to these appeals, as this  court  has held that in deciding all questions submitted to the Auditor relative to these matters he must necessarily use and does use such judgment and  discretion as cannot be reviewed or  revised by the court. How, then, can it be said  that such a  remedy is speedy?  I say again, think of the  position of  an officer  held  as  a prisoner waiting the final  result of this long, uncertain process.  Again, should the Secretary of War affirm the decision of the respondent, the relator would be in no better position than he was before the appeal was taken.   In this the  remedy is  not adequate.   Relief is what the relator wants, and not the uncertainties of an appeal.
   
  In the case of Hoey vs. Baldwin (1 Phil. Rep., 551) the plaintiff brought mandamus proceedings against the defendant to compel him to pay  a certain amount of salary due.  The defendant demurred upon the ground, among others, that plaintiff was not entitled to the writ  for the reason  that he  had another plain, speedy,  and adequate remedy in that  he could  bring  an action against  the city or upon the defendant's official bond.  The demurrer was overruled, the court saying:

  "It is enough  to say that such a remedy is certainly not a speedy one and there is difficulty in calling it a plain one." In this  case the plaintiff was seeking to recover a small amount of money only.  In the case  at  bar  the relator is fighting for his liberty.

In the case of Trinidad vs. Judge  of  First Instance (4 Phil. Rep., 531)  the petitioner had been convicted by the respondent judge on an appeal by the  former from the municipal court for violation of a city ordinance.  His appeal to the  Supreme  Court on the validity or constitutionality of the ordinance was denied.  He asked this court to compel the judge by a writ of mandamus to allow this appeal.  It was urged that if the petitioner was confined by virtue of that sentence and that if the  ordinance was invalid his remedy would be by habeas corpus and not by mandamus, as the  former was a plain, speedy, and  adequate remedy. This court said:

  "The fact, if it be a fact, that if the plaintiff is imprisoned by;virtue  of this judgment he can upon  a writ  of  habeas corpus attack the validity of the ordinance for the violation of which he was convicted is no  bar to the prosecution of this suit of mandamus."   (Citing  Collins vs. Wolfe, 4 Phil.  Rep., 534.)

In the case of People ex rel. La Grange vs. State Treasurer (24 Mich., 468) the court said:

"But in cases where the right is clear and specific, and public officers  or tribunals refuse to  comply with  their duty, a writ of mandamus issues for the very purpose, as declared by  Lord Mansfield, of enforcing specific relief.  It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ.   Where none but specific relief will do justice, specific relief should be granted if practicable.  And where a right is single and specific it usually is practicable." 

This was an  ordinary civil case.
   
In the case of the State vs. North-Eastern R. R. Co. (9 Rich. Law (S. C), 247, 67 Am. Dec, 551)  the court said:

"The general doctrine  so earnestly insisted on by the appellant's counsel, that  where  there is  a specific  legal remedy the writ will not be granted, or if granted, will be quashed, is fully sustained by reason, and by the authorities to which the court has been  referred.  But this general rule  has been restricted to  cases where the legal specific remedy is equally convenient, complete, and beneficial." Another ordinary civil case.

In the case of Hopkins vs. The State of Nebraska ex rel. Omaha Cooperage Company (64 Neb., 10) the court said:

"A remedy which is used to enforce a right or the performance of a duty, unless it reaches the end intended and actually compels the performance of the duty contemplated, is not adequate."

Almost an unlimited number  of authorities from the United States could be cited  which support the  doctrine laid  down in these three cases.  This being the holding of the courts in ordinary civil actions, what should it be in a  case where the interested party is actually and effectively deprived  of his liberty?
     
And lastly, this court says:
 
"Section 222 of Act No. 190 was taken from section 1085 of the California Code of Civil Procedure.  The section of the California Code reads 'course of law,' instead of 'courts of law.'  We believe that  a mistake  or error has been made in the printing of said section.  We believe that it was the intention of the legislative department of the government to follow exactly the provision  of the California Code and that they intended to use the phrase 'course of law' and not the 'courts of law.'  It will be noted in section 226, the section relating  to the writ of prohibition, the legislature used the phrase 'course of law.'  *  *  * We  cannot believe that the legislature intended to limit the jurisdiction of this  court  in mandamus to the cases where there was no other adequate'and speedy remedy in the ordinary courts of law.  It is  our duty, therefore, to give to the statute a  sensible construction; such as  will effectuate the legislative  intention  and, if possible, avoid an injustice or an absurd conclusion."

The statute was corrected or amended by the court so as to read "in the ordinary course of law:" "corrected" if it was the intention of the legislature to use the word "course" and  "amended" if it was not.   Courts  have the power to thus correct, but not to amend.

There are three cases cited, together with Black on Interpretation of Laws, in the majority opinion, in  support of the court's power to eliminate the word "courts"  and substitute  therefor the word "course."   (Lau Ow  Bew  vs. United  States,  144. U. S. 47, 59; Lancaster vs. Frey, 128 Pa.,  593; Lancaster County vs. City of  Lancaster, 160 Pa., 411; and Black on Interpretation of Laws, p. 77.)

In the first case it was sought to have the Supreme Court of the United States review by writ of certiorari a judgment of the Circuit Court of Appeals.  The Act of Congress of March 3,  1891, was an act  establishing Circuit Courts of Appeal and defining and regulating  the jurisdiction  of the courts  of the United States.  By section 6 the circuit courts of appeals "shall exercise appellate jurisdiction to review by appeal or by writ of error" the final decisions of the Circuit Courts "in all cases other than those provided for in the preceding sections of this Act unless  otherwise provided by law."  The court said: 

"The words 'unless  otherwise provided by law'  were manifestly inserted out of abundant caution, in order that any qualification of the jurisdiction by contemporaneous or subsequent acts should not be construed as taking it  away except when expressly so provided.   Implied repeals were intended to be thereby guarded  against.   To hold that the words referred to prior  laws would defeat the purpose of the Act and be inconsistent with its context and its repealing clause."

The only thing before the court  upon this point of the case was  a construction  of  the words "unless otherwise provided by law."  It was not a correction of errors  made by  the  legislature.  At page  59,  cited  in the  majority opinion, the court said:

 "Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention,  and,  if possible, so as to avoid an unjust or an absurd conclusion."

The court here had under consideration the construction of section 6 of the Chinese Restriction Act of May 6,  1882, as amended by the Act of July 5, 1884.  The plaintiff, Lau Ow Bew went to China to visit his relatives, having previously procured the proper  evidence of his status in the United States as a merchant, in accordance with the regulations  of the  Treasury Department.  On his return to the United States it was admitted by the collector that plaintiff was a merchant domiciled in the  United States and the sufficiency of his proof of identity  was acknowledged; yet the collector refused to permit him to land on  the sole ground that he had failed and neglected to produce the certificate of the Chinese Government mentioned in  section 6 of the Act of  May 6,  1882, as amended by the Act of July 5,1884.

In the second case, a statute of Pennsylvania relating to the apportionment of the expense of certain local improvements between  a city  and  the county in which it was situated, provided that when the balance of  expenditures should be against the city, any further expenditures should be "payable  out  of the treasury of said county,  and be reimbursable out of  the county treasury  only when  the balance shall be in favor of said city, and to the extent of such balance."  It was held that the word "county," in the clause "be payable out  of the  treasury  of said  county," must  be read as "city,"  for there was plainly a  clerical error, by which "county" was  substituted for "city."  It was said by the court:

"The obvious meaning and purpose of  the ,act is plain from  the context.  *  *   *
   
  "In making this correction we are not to be understood as correcting the act of  the legislature.   We are  enabled to carry out the intention of the legislature, from the plain and obvious meaning  of the context, in which the real purpose  or intention of  the  legislature is manifest.   It falls within the province of the courts to correct a merely clerical error, even in an act of assembly, when, as it is written, it involves a manifest  absurdity, and the error is plain and obvious.  *  *   *   The power  is undoubted,  but it can only be exercised when the  error is so manifest, upon an inspection of the act, as to preclude all manner of doubt, and when the correction will relieve the sense of the statute from  an actual absurdity, and carry  out the clear purpose of the legislature."   [128 Pa., 593.]

In  the third case, the very same error  in the same act was under consideration.
   
  Mr. Black  says on page 79: 

"But it must be  remembered  that the courts are not at Jiberty to indulge in corrections and emendations  of the written laws, unless  it is perfectly  plain that there is  a clerical error or misprint, and unless the text, as it stands, with, the error  uncorrected, would be devoid of sensible meaning or contrary  to the evident legislative intent."

In  the  State of Maryland a  revenue law provided that all property within the state  of  every  description except certain  property therein particularly  named should  be "exempt from taxes for  state or  local purposes."   It was almost incredible that the legislature meant what the words imported.  The obvious intention  was to say that  all property  except that mentioned should be subject to  taxation. Yet the  court  refused to correct  the mistake, saying that the language used was perfectly  plain  and unambiguous, and must be taken in  its natural import.   (Maxwell vs. State, 40 Md., 273.)
   
  Under a  Missouri statute  providing that  a   demand against an estate in the probate court, if exhibited within two years, might be proved within three years, it was held that,  though "three" was  substituted by mistake for "two," yet the  court  could  not  construe away the plain words of the law.  (Hicks vs. Jamison,  10 Mo. App.,  35.)

"We are bound to give to the  words of  the legislature all possible meaning which  is consistent with the clear language used.  But if we find  language  used which  is incapable of a meaning,  we cannot supply one.  To  give an effectual meaning (in  the present case)  we must alter, not only 'or'  into  'and,'  but  'issued'  into  'levied.'  It  is extremely probable that this would express what the legislature meant.  But we  cannot  supply it.  Those who used the words  thought  that  they  had effected  the  purpose intended.  But we, looking at the  words as  judges, are no more  justified in  introducing that  meaning than we should be if  we  added any other'provision.   (Green vs. Wood, 7 Ad. & El. (N. S.), 178,  per Lord Denman.)"

    The word "courts"  as used in section 222 of our Code of Civil Procedure is plain, it is clear, and it is not ambiguous. This word has  remained in this section for  more than ten years.  The question  of "correcting" an act of the legislature  by the courts is  at all times one of much delicacy. An act should  never be so corrected  in a  doubtful case. The court, when  impelled by duty to render such  a judgment, would be unworthy of its station could it be unmindful of  the solemn obligations which that station imposes, but it is not on slight implications and vague conjectures that the legislature should be pronounced to have been so careless and inattentive to duty as to sanction the publication of one  of its acts and permit its  remaining unchanged so long.

This court says:

"We cannot believe that the legislature intended to limit the jurisdiction of this  court  in mandamus to the cases where there was  no other adequate and speedy remedy in the ordinary courts of law."

It appears to my mind that substituting the word "course" for "courts" curtails the jurisdiction  of this  court.  To leave  the word "courts" we have jurisdiction of cases which we cannot have under the word "course."  The very case at bar illustrates  this fact.  As I have  said,  the relator had no other remedy whatever in the ordinary courts of law, for the reason that neither an appeal nor writ of error would lie to this court or any other court from the decision of the Auditor; but in the ordinary "course" of  law he has a remedy by appeal to the Secretary of War, although that remedy is neither speedy nor adequate.  Why not say that it was the intention of the legislature to give  the  courts great latitude in mandamus proceedings on account  of the peculiar constitution of the government.  The  legislature undoubtedly had the power to confer this  jurisdiction upon the courts and according to the plain wording of this section it did do  so.  It does not render the statute meaningless or nonsensical.  It might be said that if the  legislature intended to  use the word "courts" the result would be that innumerable proceedings in  mandamus would be instituted where the interested parties had a very plain, speedy, and adequate remedy in the executive branch of the government. But it is not probable that this would occur, for the reason that it is always within the sound discretion of the  court whether or not a mandamus should issue.

Paragraph 4 of section 333 of Act No. 190 originally read "the judgment or order of the court when declared by the court  to be conclusive."   The legislature,  by Act No. 1431, passed January 3, 1906, changed the words "the court" to "this code."   This  tends to show that the code has been very carefully gone over.

One of the principal characteristics of judge-made law is uncertainty.  This uncertainty comes  in a great degree from the nature of the source whence the law  is derived. It is made by the judiciary, not by the legislature.  Made to fit  particular cases,  and always  after the  fact.   The difference  between  judge-made law and jurisprudence founded  upon statutes is as wide as the poles.   The true function of the legislature is  to make the law; the true function of the courts is to expound it.  The function  of legislation and interpretation can not under our form  of government be placed in the same hands.  Our first maxim is that the laws be made by one set of men and interpreted by another.  In other words, that the legislative and  judicial characters be  kept separate.  If  we inquire what it is  that gives force  to an  act  of the legislature, the answer is that it is ultimately the will of the people.   The people have willed  that  an assemblage of men organized in such and such a  way shall make the laws for the entire community.  It may  be  true that no legislature was ever so active as to make its statutes cover the entire field  of admitted legal obligation.  But where it has expressly by its solemn act covered a part of the field, the court should not interfere with its own legislative power,  except, possibly, in extreme cases.  Mr. Boyd Winchester, in his article "The  Judiciary" (32 Am. Law.  Rev., 807), says  among other things: 

"In the  judgment  of  many no  more  serious evil  has developed in our constitutional history than the growing tendency of the courts to stretch the powers devolved upon them by the federal and  state  constitutions, and usurp the functions  of the political departments of the government. Not content with deciding questions of law and fact brought before them in the ordinary course of litigation,  the courts have,  in  many instances,  undertaken to  legislate.

*       *       *       *       *       *       *

"Judicial  power, in its  nature,  is power to hear  and decide causes pending between parties who have the right to sue and be sued in the courts of law and equity."

Article 483 of the Penal Code  provides that any person who in any case other than that permitted by law or without reasonable grounds therefor shall arrest or detain another person for  the  purpose of taking the latter before the authorities,  shall suffer the penalties of arresto menor and a fine.  In commenting upon this article, Viada, in volume 3, page 288, says:

"Arresto  menor, a  light penalty  under the general scale of penalties set out in article 26,  is here applied for the first and only time in  this code, to an offense greater than a misdemeanor.  It would appear that in place of this offense it was intended to prescribe arresto  mayor"

Speaking  in reference to the penalty here imposed by this article, this Supreme Court,  in the case of United States vs.  Fontanilla (11 Phil. Rep., 233)  said:

"The penalty prescribed  under  this article is that of arresto menor, which seems  hardly  adequate  in  view of all  the circumstances of this  case, but it is the penalty prescribed by law and the only one which can lawfully be imposed.

*      *     *      *       *      *    *

 "It is our duty to impose the penalty prescribed by law and no other."

Here the court practically admits that the legislature did not intend to use the  words "arresto menor,"' but intended to use the words "arresto mayor."

Our Code of  Civil Procedure was prepared and enacted in 1901 by a commission, the majority  of  whose members were American lawyers of known  reputation.  Each section was discussed and examined  separately.  It was no doubt carefully  gone over frequently after  it became law.   The Commission, before the  convening of the Assembly,  met in legislative session almost daily, and it does appear that if the word "courts"  was used in section 222 by mistake, that it would have been  discovered long before this time.

In the case of Hoey vs. Baldwin, supra, this court quoted the  whole of section  222.  The question whether  or not the  plaintiff had a plain, speedy, and adequate remedy in the  ordinary courts of law was squarely before the court. The court did not even indicate in this case that the legistlature did not intend  to use the word  "courts."  I am of the  opinion that it is  rather late, after the code has  been in effect for over ten years,  to amend  it in  this manner.
   
  Allowing the  statute to stand as it was enacted,  is it meaningless or nonsensical ?  The section provides in effect that when a person shows  a  departure from duty  on the part of an officer, he  shall  have recourse to mandamus if there is no other plain, speedy, and adequate remedy in the ordinary  courts of  law.  Does a  strict  interpretation  of these provisions lead us into impossibilities or improbabilities?  If it does not, certainly there can be no reason for going so far as  to substitute new words for those used by the legislature.

"1. When the petitioner fails to  show a  departure from duty the remedial portion of the section cannot be applied by the courts. This is plain.
   
  "2. When the petitioner shows a departure from duty but has  an appeal to the courts (such as suit on official bond) which is not plain, speedy and adequate, the section applies. (Hoey vs. Baldwin, supra.)
   
  "3. When petitioner  shows a departure from duty but has an appeal provided by  law through  administrative channels which is not plain, speedy,  and adequate, this court could logically take jurisdiction on  the ground that petitioner's only remedy in the courts is by mandamus and, consequently, that he has no other remedy in the ordinary courts of  law.

"4. When petitioner  shows a departure from duty but has an appeal provided by  law through  administrative channels which is plain, speedy,  and adequate, a strict interpretation of section 222 would confer jurisdiction on this court to afford relief if the petitioner elected to take his remedy in this  way in preference to  his  plain, speedy and adequate remedy through administrative  channels.  Did  the  legislature intend to provide this duplicate remedy?"

  In the majority opinion this court undertook to show that there was  a clerical error in the preparation  of the code because (1) the section is taken from the California Code which reads "course of law," and  (2) section 226 of our own code relating to prohibition reads "course of law."   I will add another, which is that that provision of a great number of the codes in the tinted States which vests in the courts the power to issue mandamus reads "course of law." In my opinion, all three of these reasons do not show a clerical error in section 222.  But let it be said that they do operate to the extent that the legislature had a  special purpose  in using the word "courts," and, in so doing, that it changed the general rule in the United States,  All will admit that the legislature  had ample authority to make  this change and  to confer this power upon the courts.  Suppose A, in his petition, should allege a gross abuse of discretion on the part of an officer in the performance of Mis duties and the court find this allegation to be true, and also that A had; another  plain, speedy,  and adequate remedy in administrative channels. This  court, under  the powers conferred upon  it by the original statute, would iiave Authority to afford  the relief, but it does not follow that the  court would exercise this power.  As a matter of fact, it would not.  The statute provides that the  court ay  issue the writ.  As I have said, the question as to whether or not the writ of mandamus shall issue  rests in every case in the sound discretion of the court.  Conferring upon the courts this extra power in mandamus proceedings. is Inot the  only departure  from the general provisions of the codes in the United States.  This court has  the power  to  increase, decrease, modify, etc., penalties in criminal cases.   No such power is exercised  by any of the courts in the American Union.  Again, our Courts of First Instance exercise powers in the trial of cases unknown in America.   So also, the provisions of Act No. 1605 are unknown in the United States.   This Act  is a wide   departure from the general laws relating to bonded officers in America.   So it is not strange that this extra power has been conferred upon the courts in mandamus proceedings.
 
  In my  opinion, the use of the  word  "courts" in  section 222 is not a clerical error, but a wise piece of legislation, and this court, in amending this section by substituting the word "course"  has committed the  grave, and serious  error of taking away from the courts  powers which were  wisely conferred upon them by the legislature.  When the legislature speaks it is our duty to obey.  The legitimate province of the courts is to interpret the acts of the legislature as they are found.  By so doing, that security  of life, liberty,  and property, which is the great  end of human society and government,  will be promoted, and the uncertainties which are sure to follow judicial legislation avoided.
 
  In this  case the relator is now and has been for some time deprived  of  his liberty  without due process of law.  He failed to obtain relief in the highest court in the land; the tribunal which has always been regarded as the  bulwark of the people's liberties, the  guardian of the great principles contained in  the instructions of the  President to the First Philippine Commission,  and  the final protector  of life and property.
 
For the foregoing reasons, I  firmly  believe  that  the demurrer should  have been  overruled  and the defendant required to answer.
 
 
 

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^[1] Not published.