CHUA QUIP, PETITIONER AND APPELLEE, VS. THE INSULAR COLLECTOR OF CUSTOMS, RESPONDENT AND APPELLANT.

In 1926 he went to China, and came back to the Philippines in
December, 1927, asking that he be readmitted as a returning resident
Chinese merchant.

A board of special inquiry was appointed to hear the petition,
which, having done so, denied the same, and was confirmed in its action
by the Insular Collector of Customs. The principal reason for the
denial is that it has not been satisfactorily proved that the
petitioner is a merchant.

The appellee was thus compelled to apply to the Court of First
Instance of Manila for a writ of habeas corpus, which was granted.

From this order granting the writ, the Insular Collector of Customs appealed, assigning the following alleged errors:

“1. The trial court erred in holding that the appellee is the owner of a ‘sari-sari’ store at 637 Calle Lara, Manila.

“2.
The trial court erred in holding that the petitioner-appellee is a
‘merchant’ within the meaning of the Chinese Exclusion Act.

“3.
The trial court erred in holding that the customs authorities abused
their authority and discretion in refusing the readmission of the
petitioner-appellee to these Islands.

“4. The trial court erred in granting the writ of habeas corpus prayed for the petitioner-appellee.”

We are of opinion that the petitioner has sufficiently proved that
he is a part owner of a “sari-sari” store situated at No. 637 Lara
Street, Manila. The fact that his Filipino witnesses may not know his
real name, neither detracts from the verity of their testimony, nor
from the appellee’s allegation; and the licenses issued to him for said
store, since the year 1922, taken together with the testimony of said
witnesses, bear out his allegation that such a store exists, and that
he is a co-owner thereof.

The character of the business in which he is engaged makes of him a
merchant within the definition of this word given in section 2, of the
Act of Congress of November 3, 1893.

It does not appear from the record that refreshments and other
foodstuffs cooked and prepared, are served in said store as in the
“sari-sari” stores referred to in the Attorney-General’s brief. For
this reason, no application can be made in the instant case of the
citations in said brief, calling attention to the work of serving
coffee and refreshments, which, in the case of United States vs.
Lim Co (12 Phil., 703) was not deemed necessary to the business of a
merchant, to wit, to buy and sell merchandise; nor is the doctrine laid
down in In re An Yow (59 Fed. Rep., 561) applicable herein, inasmuch as
the store in question is not a restaurant.

The party appellant in his brief expresses the fear that to consider
Chinamen owning “sari-sari” stores as merchants, might have the effect
of encouraging fraud and frustrating the aims of the exclusion law,
suggesting that any Chinese with a few pesos might open a “sari-sari”
store, in order to enable his wife and children to enter this country.
But it should be borne in mind that the law refers to merchants in good
faith, or such as engage in business with a sincere and honest purpose.
And it is incumbent upon the proper authorities and the courts to judge
each particular case upon its own merits, and to refuse to recognize as
merchants all immigrants who are not bona fide merchants, but
have acquired the status of merchants, for illegal purposes. And in the
present case the record does not show, or even suggest, that the
appellee is not a bona fide merchant. In fact, on the first
page of the instrument Exhibit C (page 16 of the record) there appears
a certification to the effect that the appellee’s allegations that he
is a merchant were made in good faith.

As to the amount of the capital invested in the aforesaid store, it
is true that when such amount is small it might in some case be
construed as bad faith on the part of the one attempting to pass
himself off as a merchant, provided other facts in the case warrant
such a conclusion; but, in the absence of such evidence or indication
of bad faith, it would be an unjust application of the law to deny the
appellee the status of a merchant, for the sole reason that the capital
invested in his store is only P700.

The judgment appealed from is affirmed without costs. So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Ostrand, Johns, and Villa-Real, JJ., concur.