1. MANDAMUS; CONDITIONS PRECEDENT. — Mandamus will not lie to compel a public officer to perform an act unless it is one the performance of which the law specially enjoins as a duty resulting from his office or unless the failure to perform said act will result in precluding the plaintiff from the use and enjoyment of a right to which he is entitled.

2. ID.; TO COMPEL COLLECTOR OF CUSTOMS OR INTERNAL REVENUE TO ISSUE CERTIFICATE OF ORIGIN. — Mandamus will not lie to compel the Insular Collector of Customs or the Collector of Internal Revenue to issue a certificate of origin of cigars about to be exported to the United States although the exporter, according to custom, is justly and equitably entitled thereto, and although the refusal to issue such certificate is, according to such custom, unjust, arbitrary and unreasonable, there being no statute or ther law laying a duty on such officials to issue such a certificate.

3. ID.; ID. FORCE AND EFFECT OF EXECUTIVE ORDER OF THE GOVERNOR-GENERAL. — An executive order issued and promulgated by the Governor-General requiring the Insular Collector of Customs and the Collector of Internal Revenue to issue certificates of origin to persons exporting Philippine products to the United States does not confer on any given exporter a right that can be made the basis of an action for mandamus to compel said officials or either of them to issue such certificate.

This is a petition to this court for a writ of mandamus directed to Bernard Herstein as Insular Collector of Customs and James J. Rafferty as Collector of Internal Revenue, requiring them "to furnish plaintiff the certificate covering the origin and the certificate of origin, respectively, of the cigars destined for exportation from these Islands to the United States."cralaw virtua1aw library

A demurrer was filed to the petition based on the ground that "the facts stated in said petition do not entitle the plaintiff to the relief demanded, in that it does not appear from the facts stated that the Insular Collector of Customs or the Collector of Internal Revenue has failed or refused to perform any duty incumbent upon either of said officers."cralaw virtua1aw library

The question before us is that presented by the demurrer to the petition, or complaint, the proceeding to obtain a writ of mandamus being, in this jurisdiction, an "ordinary action."cralaw virtua1aw library

It appears that the plaintiff, Walter E. Olsen & Co., a corporation, is a manufacturer and exporter of cigars composed of tobacco grown in the Philippine Islands. On or about the 16th day of July, 1915, this company applied to the Collector of Internal Revenue for a certificate covering the origin of a certain consignment of 10,000 cigars presented to the Collector at the time of the application, duly packed, as required by the regulations of the Bureau, in proper boxes of 100 cigars each, each box properly stamped with the United States internal revenue stamps required by law and the regulations of the Bureau of Internal Revenue, which cigars are known as "cortado," having straight instead of spiral wrappers and shaped somewhat like a truncated cone, which said cigars the company desired to introduced into the United States free of duty under the provisions of the Tariff Act of the United States. On such application plaintiff produced the statement required by the rules of the Bureau of Internal Revenue, which it offered to verify before the collector as required by the rules of the Bureau covering shipments of cigars, demonstrating that the cigars were entitled to free entry into the United States under the provisions of the Tariff Act of the United States relating to commerce with the Philippine Islands. The Collector of Internal Revenue refused and still refuses to issue a certificate covering the origin of the cigars on the ground, not that the material composing the cigars was not the product of the Philippine Islands, but that the cigars in question did not conform to a certain regulation relating to the exportation of Philippine cigars to the United States issued by the Collector of Internal Revenue on the 26th of January, 1915, providing that, after the expiration of a certain period, no certificate of origin would be issued by said Bureau for cigars which were not "standard," it being held by the Collector that the "cortado" cigars were not "well made" and, therefore, were "not entitled to the standard mark" which a certificate of origin would place on them, the only cigars entitled to such certificate being those of the regular shape, having a spiral wrapper and with substantially the same diameter at each end. On the refusal of the Collector of Internal Revenue to issue the certificate prayed for, application was made to the Insular Collector of Customs for a certificate of origin of the material of the cigars, which request was refused on the ground that the certificate of the Collector of Internal Revenue covering the origin of the cigars had not been issued and presented with the application as required by the customs regulations.

The plaintiff alleges that the regulation of the Collector of Internal Revenue of January 26, 1915, above referred to, relative to the exportation of cigars to the United States, is "arbitrary, discriminating, illegal and void, and made without any authority of law, and is an attempt to legislate and an endeavor by the Collector of Internal Revenue to introduce provisions into the United States Tariff Acts governing these Islands utterly inconsistent and at variance with the laws therein expressed."cralaw virtua1aw library

The complaint asserts that it is the duty of the Insular Collector of Customs "to furnish exporters in these Islands certificates of origin of cigars and other tobacco destined to the United States of America, to enable said merchandise to enter into the United States free of duty, provided that they have complied with the Acts of Congress of the United States of date of August 5, 1909, and October 3, 1913, respectively, known as the Tariff Acts, and with the provisions thereof relating to exports from the Philippine Is- lands to the United States; and provided that they have complied with the rules and regulations relating thereto not inconsistent with law, made and promulgated by the said Insular Collector of Customs of the Philippine Islands, and approved by the Secretary of Finance and Justice thereof."cralaw virtua1aw library

The question presented for our determination in this case is whether or not, in connection with the issuance of "certificate covering the origin" and "certificate of origin" mentioned in the complaint, there rests on the Collector of Internal Revenue and the Insular Collector of Customs a duty the performance of which the courts will enforce by mandamus. For convenience we will, in this decision, use the phrase "certificate of origin" to describe both of the certificates above mentioned, there appearing to be, in essence, little difference between them.

Section 222 of the Code of Civil Procedure, which is the only authority in the Philippine Islands for the issuance of the writ of mandamus, provides: "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 complain 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."cralaw virtua1aw library

Under this section the inquiry is narrowed to the determination of whether the Insular Collector of Customs and the Collector of Internal Revenue have neglected the performance of an act which the law specially enjoins as a duty resulting from their office or unlawfully excludes the plaintiff from the use and enjoyment of a right to which he is entitled and from which he is unlawfully precluded by them.

We are of the opinion that plaintiff’s case as set out in the complaint is not one of those provided for by the section just quoted. Unlike the statutes of many of the States, our Code of Civil Procedure authorizes the issuance of a writ of mandamus in two classes of cases only," (a) where an official unlawfully neglects the performance of an act which the law specially enjoins as a duty resulting from his office," and" (b) where he unlawfully excludes the plaintiff from the use and enjoyment of a right to which he is entitled and from which he is unlawfully precluded by such official." We do not believe the plaintiff has shown itself entitled to the benefits of either of these provisions. Our attention has been called to no statute which requires either the Insular Collector of Customs or the Collector of Internal Revenue to issue a certificate of origin of the materials composing any class of cigars, or of any other Philippine product for that matter. We have examined all of the statutes which might have a bearing on this proceeding and in none of them have we found any provision placing any such duty on either of the officials named. The Tariff Act of October 3, 1913, entitled "The Tariff Act of October 3, 1913," does not lay any such duty on these officials, having only this to say with reference to the importation of tobacco from the Philippine Islands: "C. That there shall be levied, collected, and paid upon all articles coming into the United States from the Philippine Islands the rates of duty which are required to be levied, collected, and paid upon like articles imported from foreign countries: Provided, That all articles, the growth or product of or manufactured in the Philippine Islands from materials the growth or product of the Philippine Islands or of the United States, or of both, or which do not contain foreign materials to the value of more than 20 per centum of their total value, upon which no drawback of customs duties has been allowed therein coming into the United States from the Philippine Islands shall hereafter be admitted free of duty: . . ."cralaw virtua1aw library

Under this provision it is necessary, in the exportation of products of the Philippine Islands to the United States, to satisfy the customs officials of that country that the proposed importations are of the character described in that portion of the Act of Congress of October 3, 1913, above quoted. By virtue of this necessity, and pursuant to Executive Order No. 41 hereafter to be discussed, there has grown up a custom in the Philippine Islands dating from 1909 (the Tariff Act of August 5, 1909, having the same provision with respect to importations from the Philippine Islands as the Act of October 3, 1913), by virtue of which the Collector of Internal Revenue has issued and still issues to the manufacturers of cigars in the Philippine Islands a certificate covering the origin of the material composing the cigars which declares, in effect, that at least 80 per cent of the value of the material composing the cigars was or is the growth or product of the Philippine Islands. On this cer- tificate, the Insular Collector of Customs issued and still issues a certificate of similar character. These certificates are the evidence on which the customs officials in the United States act with respect to products imported from the Philippine Islands in determining whether they are dutiable or not. This custom was not based, as is clear from the quotation above made, on any provision of the Congressional Tariff Act of 1913 requiring the issuance of such certificate by any official, Federal or Insular. There is nothing in that act which imposes a duty on either the Insular Collector of Customs or the Collector of Internal Revenue with respect to certificates of origin relative to products or merchandise exported from the Philippine Islands with destination in the United States.

Nor was such or a similar duty imposed by any statute of the Philippine Islands. The duties of the Insular Collector of Customs are laid down in section 3 of Act No. 356, known as the Customs Administrative Act. A careful reading of that section, and indeed of the whole Act, produces the instant conviction that the duty of making a certificate of origin with respect to Philippine products is not imposed by that section or by any other portion of the Act. The same may be said with respect to the statute imposing duties on the Collector of Internal Revenue. There is nothing to be found in the Internal Revenue Act (No. 2339) which authorizes the Collector, much less lays on him the duty, to issue certificates of origin. While, as we have said above, it has been the custom to issue such certificates it was based on no statute either of the United States or of the Philippine Islands and was not adopted by virtue of any duty imposed on those officials by law. It arose from the fact that it was far easier for Philippine exporters to present to Philippine officials the evidence necessary to procure the admission of their exportations into the United States free of duty than to offer it to the customs officials of the United States. When an exporter in the Philippine Islands desired to export Philippine products to the United States it became necessary, either by virtue of some rule established by the United States customs authorities, or for some other reason as to which we are not definitely informed by the complaint, to send along with the exportation proof satisfactory to the customs officials of the United States establishing the facts required by that portion of the Congressional Tariff Act of 1913 quoted herein before as a condition to free entry into the United States. This evidence was supplied by the certificates of origin.

We deem it clear, therefore, that the custom of issuing certificates of origin of Philippine products about to be exported to the United States is based on no statute of the United States or of the Philippine Islands. The benefit conferred by the Congressional Tariff Act of 1913 on the Philippine exporter is the right to have his goods entered free of duty in the ports of the United States, provided they meet the requirements of that Act. This is the right and the only right which the exporter in the Philippine Islands has by virtue of that Act. The presentation of certificates of origin to the customs officials of the United States demonstrating that the article sought to be imported falls within the definition of the Tariff Act is not based on a right conferred by the Tariff Act but is simply a method by which such proof can be made. The Philippine exporter is not limited in his proof that his exported article falls within the provisions of the Tariff Act to the presentation of a certificate of origin. So far as appears in this case, he may present to the customs officials of the United States any other evidence which will establish the same fact; and, if such evidence is satisfactory to those officials, the importation will be entered free of duty although the importation is not accompanied by a certificate of origin. The Tariff Act sets out no particular method by which the fact that the article is a Philippine product must be established; and the exporter, under that Act, obtains no legal right to prove the fact of Philippine origin by any particular method or means. He simply gets the right to prove it. This being so, it must follow that he has no legal right to present a certificate of origin to the customs officials of the United States, nor has he a legal right to require the issuance of a certificate of origin from any official of the Philippine Islands. Not having been granted by the Act, no such right exists under the Act, and if no such right exists certainly it can not be enforced in any sort of action.

Immediately on the passage of the Tariff Act of 1909 the Governor-General of the Philippine Islands issued Executive Order No. 41, dated May 7, 1909. It dealt with that provision of the Tariff Act of 1909 which was repeated in the Tariff Act of 1913 which we have already quoted. It provides: "Upon the passage of a Congressional enactment authorizing the free entry into the United States of goods the product and growth of the Philippines, all customs and internal revenue officials will consider themselves charged with the duty of preventing the fraudulent export for free entry into the United States of goods which are not the product and growth of the Philippines. In case the Insular Collector of Customs, the Collector of Internal Revenue, or their duly authorized representatives are satisfied that goods sought to be exported to the United States for free entry therein are really and truly the product and growth of the Philippines, they shall issue proper certificates to the exporter of such goods to that effect, and shall advise him that a duly authenticated copy of such certificates must accompany the goods to the United States and be presented to the proper customs officials at the port of entry in the United States.

"The Insular Auditor is hereby directed to transmit promptly at the close of each month, through this office, to the Secretary of the Treasury of the United States an abstract of such exports."cralaw virtua1aw library

In pursuance of this order, Customs Administrative Circular No. 715, directed "to all collectors of customs and others concerned," was issued on the 1st of August, 1914. Paragraphs 1, 2 and 3 thereof are as follows-

"The following regulations prescribing the manner of complying with the provisions of section IV (c) of the United States Tariff Act of October 3, 1913, for the shipment for free entry in the United States of Philippine products, upon which no drawback of customs duties has been allowed, and which are for direct shipment, under a through bill of lading, from the Philippine Islands to the United States, are hereby published for the information and guidance of all concerned.

"The term ’Philippine products,’ wherever used in these regulations, shall be held to mean ’articles the growth or product of or manufactured in the Philippine Islands from materials the growth or product of the Philippine Islands or of the United States, or of both, or which do not contain foreign materials to the value of more than 20 per centum of their total value,’ in the sense o