GO CHEN AND GO LEK, PETIONERS AND APPELLEES, VS. THE COLLECTOR OF CUSTOMS OF CEBU, RESPONDENT AND APPELLANT.

This appeal was taken by the collector of customs for Cebu against the
judgment of the Court of First Instance of that province, granting the writ of
habeas corpus applied for by Go Chen and Go Lek, and ordering that they be set
at liberty and permitted to remain in the Philippine Islands.

In support of his appeal the appellant assigns the following alleged errors
as committed by the court below:

“1. The trial court erred in holding that the right of a minor to enter or
remain in the Philippine Islands is not a consequence of the exercise of patria
potestad.

“2. The trial court erred in issuing the writ of habeas corpus applied for by
the petitioners.”

The following facts were established by a preponderance of evidence:

The petitioners and appellees, Go Chen and Go Lek, are minor children of Go
Tuan and Tan Bon. Go Tuan died in China eleven years ago. Two years later, Tan
Bon his widow, married another Chinaman, and shortly thereafter came to the
Philippine Islands with her second husband, where she was admitted as the wife
of a Chinese merchant, and where she has been residing for the past eight years.
The petitioners remained in China under a paternal uncle, together with their
three brothers and one sister. Tan Bon is at present engaged in the furniture
business in Cebu. Being a resident merchant, she ordered her two sons, the
petitioners herein, to join her in these Islands. On October 20,1930, the
petitioners and appellees, Go Lek and Go Chen, then aged 20 and 18,
respectively, arrived in the Philippines on board the S. S. Susana II, and took
up their abode with their mother, Tan Bon at her home in Cebu, Cebu. A month
later, Go Lek left his mother’s home and went to Talisayan, Misamis Province, at
the invitation of a friend of his named Go Tian Ho, whom he had been helping in
his store in that municipality. The petitioners and appellees are both single
and have another brother, also single 21 years of age, named Go Soon, who is
living in Cebu with his mother.

Now, then, a Chinese widow who never resided in the Philippine Islands during
her first marriage, is admitted and acquires a residence as the wife of a
Chinese merchant, her second husband. Is she entitled to bring in her minor
children by the first marriage?

In In re Chung Toy Ho (42 Fed., 398, 399), the Circuit Court of Oregon,
United States, gives the following reason for the right of a Chinese resident’s
wife and children, to enter without a Residence certificate: “It is impossible
to believe that parties to this treaty, which permits the servants of a merchant
to enter the country with him, ever contemplated the exclusion of his wife and
children. And the reason why they are not expressly mentioned, as entitled to
such admission, is found in the fact that the domicile of the wife and children
is that of the husband and fattier, and that the concession to the merchant of
the right to enter the United States, and dwell therein at pleasure, fairly
construed, does include his wife and minor children; particularly when it is
remembered that such concession is accompanied with a declaration to the effect
that, in such entry and sojourn in the country, he shall be entitled to all the
rights and privileges of a subject of Great Britain or a citizen of France.”

In United States vs. Gue Lim (176 U. S., 459, 468), the United
States Supreme Court gives the same reason as follows:

“In the case of the minor-children, the same result must follow as in that of
the wife. All the reasons which favor the construction of the statute as
exempting the wife from the necessity of procuring a certificate apply with
equal force to the case of minor children of a member or members of the admitted
classes. They come in by reason of their relationship to the father, and whether
they accompany or follow him, a certificate is not necessary in either case.
When the fact is established to the satisfaction of the authorities, that the
person claiming to enter, either as wife or minor child, is in fact the wife or
minor child of one of the members of a class mentioned in the treaty as entitled
to enter, then that person is entitled to admission without the
certificate.”

Therefore the ground of the wife’s right of entry into the territory of the
United States and hence, into the Philippine Islands, is the principle of
Private International Law and of Civil Law, that a man’s domicile is also the
domicile of his wife and minor children, and that he is in duty bound to
protect, support, and keep them in his company. A Chinaman’s Chinese wife and
her minor children, then, do not enter the Philippine Islands through their own
right, but by virtue of the right of the husband and father, unless the Chinese
wife belongs to the privileged class.

The Chinese woman Tan Bon, who seeks to bring in her minor children, the
petitioners herein, did not enter through her own but through that of her second
husband. If the wife’s right to enter is derived from her husband’s, and the
right of the minor children from that of their father, then the petitioners and
appellees, not being children of their mother’s second husband, are not entitled
to enter. The mere fact of their being children of Tan Bon confers on them no
right of entry, inasmuch as she herself did not enter of her own right, and they
cannot base their right on hers.

Counsel argue that as she is now a resident merchant, she is entitled to
bring in her minor children. The mere fact that she became a merchant after
coming into these Islands, gives her no right to remain, following this court’s
ruling in the cases of Juan Co vs. Rafferty (14 Phil., 235) ; United
States vs. Yu Wa (28 Phil., 1); United States vs. Sia Lam Han
(29 Phil., 159) ; United States vs. So Hao Ka (31 Phil., 649). She has
the latter right by virtue of being the wife of a Chinese merchant who came into
the country in that capacity.

As the Chinese woman aforesaid, Tan Bon, did not enter the Philippine Islands
by her own right, but by virtue of her second husband’s right, she is not
entitled to bring in her minor children by another Chinaman who never had a
legal residence in the Archipelago.

Wherefore we are of opinion and so hold, that a Chinese woman entering these
Islands not on her own right but by virtue of the right of her second husband, a
Chinaman, has no right to bring in her minor children by the first husband, who
never had a legal residence in this country.

By virtue whereof, the judgment appealed from is reversed, and the writ of
habeas corpus denied, with costs against the appellees. So ordered.

Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and
Imperial, JJ., concur.