[G.R. No. 10989. January 24, 1916. ]
GO PAW, Petitioner-Appellant, v. THE INSULAR COLLECTOR OF CUSTOMS, Respondent-Appellee.
Beaumont & Tenney for Appellant.
Attorney-General Avanceña for Appellee.
1. ALIENS; CHINESE EXCLUSION; ADMINISTRATIVE PROCEEDINGS. — Where a board of special inquiry, passing on the right of a Chinese person or person of Chinese descent to enter the Philippine Islands, bases its decision, in part, on the personal appearance, racial characteristics, language, dress and manner of the alien, the Collector of Customs may review on appeal without having before him the body of the alien, although there is no evidence in the record to show what his appearance and racial characteristics were.
2. HABEAS CORPUS; EVIDENCE; RECORD OF BOARD OF SPECIAL INQUIRY. — The fact that the applicant for a writ of habeas corpus may believe it to be the duty of the Government to bring before the Court of First Instance the record of the board of special inquiry as a part of the proceeding in habeas corpus does not release the applicant, in case the Government does not bring up the record, from the duty of himself taking such steps as are necessary to bring the record before the court if he desires to obtain any benefit from its consideration.
3. APPEAL; PRESENTATION IN LOWER COURT OF GROUNDS OF REVIEW; RECORD OF PROCEEDINGS OF BOARD OF SPECIAL INQUIRY. — Where it appears from the record in this court on appeal that the appellant from an adverse decision by the Courts of First Instance in habeas corpus proceedings made no effort to bring the proceedings of the board of special inquiry before the Court of First Instance, it is too late to raise the question for the first time in this court and base an argument on its absence.
4. ID.; ID.; ID. — A party in an action or proceeding in a court of justice is presumed to know what the record before that court is; and if any portion necessary for the protection of his rights is absent or defective, it is his duty to take such measures as will correct the record. On failure to do so he, generally speaking, loses his right in the appellate court to make an objection based on such defect, and the appellate court will ordinarily proceed to the consideration of the case on the record as it stands.
5. HABEAS CORPUS; RETURN; RECORD OF PROCEEDINGS OF ADMINISTRATIVE OFFICERS. — The record made by the board of special inquiry and the Collector of Customs in the determination of the right of a Chinese person to enter the Philippine Islands forms no part of the return to a writ of habeas corpus obtained on application of said alien after an adverse decision of said Collector of Customs.
D E C I S I O N
MORELAND, J. :
This is an appeal in a proceeding to obtain a writ of habeas corpus.
The petitioner arrived at Manila on April 26, 1915, from Amoy, China, together with two other persons claiming to be Go Tun, petitioner’s brother, and Irene Yangco, petitioner’s mother. He was refused admission by the immigration authorities for the reason that they believed him to be a Chinese person or person of Chinese descent possessing no certificate permitting him to enter the Philippine Islands and presenting no other evidence showing him to be a member of any of the exempt classes. He was accordingly ordered returned to China, whereupon application was made to the Court of First Instance of Manila for a writ of habeas corpus. On the hearing in the Court of First Instance the petitioner offered in evidence a copy of the decision of the Insular Collector of Customs rendered on appeal from the decision of the board of special inquiry, which was received and marked Exhibit A. The petitioner also offered himself, his alleged mother and another person as witnesses, who, over the objection and exception of counsel for the respondent, were permitted to testify regarding the matters forming the subject of the proceedings before the customs officials. They testified in substance that Irene Yangco, a Filipina, had lived in China for 25 years; that the petitioner, 21 years of age, was her son by a Chinese person named Go Soa, to whom she was never legally married; and that the petitioner was never in the Philippine Islands prior to April 26, 1915. The court on the evidence offered refused to grant the writ and ordered the petitioner returned to the custody of the Insular Collector of Customs. This appeal is from that decision.
The first error assigned by appellant is that "the court erred in overruling the petitioner’s motion to strike the return from the file." The basis of this objection is that the return to the writ of habeas corpus was made and signed by the Attorney-General and not by the person in whose custody the petitioner was and to whom the writ was personally directed. This question has already been passed on by this court in the case of Lee Jua v. Collector of Customs (32 Phil. Rep., 24), which was followed in the case of Que Quay v. Collector of Customs (p. 128, ante). This assignment, therefore, needs no further discussion.
The second error assigned is to the effect that the Insular Collector of Customs abused his authority and violated the law by deciding the appeal of appellant in this case without having before him all of the evidence taken before the board of special inquiry and especially without having seen the appellant, whose personal appearance and racial characteristics were taken into consideration by the board in arriving at its decision.
With regard to this assignment we might say, in the first place, that we do not know from the record what the evidence before the board of special inquiry was or on what evidence it based its conclusion that the appellant was not entitled to enter the Philippine Islands. As already indicated, there was nothing before the Court of First Instance and there is nothing before this court except the decision of the Collector of Customs and the testimony of the three witnesses who were heard by the Court of First Instance. The proceeding before the board was not offered in evidence or otherwise made a part of the record and we have no knowledge as to what that proceeding contains. Moreover, the decision of the Insular Collector on appeal was not based altogether on the appearance and characteristics of the applicant. As will appear from a cursory glance, it was based on the discrepancies and the contradictions in the testimony of the witnesses for the alien and the fact that the two witnesses who testified on his behalf before the board deposed as to facts which occurred when they were 7 and 10 years of age. The serious conflict appearing between the testimony of the alleged mother and her sons, including the appellant here, together with the age of the witnesses when the facts occurred to which they were testifying, led the board of special inquiry, as it did the Collector of Customs, to discredit the evidence and to refuse to accept it as a basis on which the alien could predicate his right to enter. The customs officials did not refuse to admit Go Tun, who came to the Islands along with the appellant and who alleged that he was also the son of Irene, the alleged mother of the Appellant. The evidence as to his right to enter was of such a character as to permit a reasonable person to accept it as true; and the customs authorities accordingly permitted the entry. With respect to the appellant however, the evidence was so contradictory and so improbable that the customs officials could not conscientiously order a landing thereon.
Moreover, even if it had appeared in this case that the personal appearance, racial characteristics, language, dress, manner and deportment of the appellant had been taken into consideration by the board in making its determination as to his right to enter, the Collector would have the right on appeal to decide the case on the evidence before him even though he did not see the appellant and even though there was no evidence in the record to show what his appearance was. This question was decided in the case of Que Quay, supra, and was there fully discussed.
Under this assignment of error the appellant also argues that it was error for the Court of First Instance to base its decision, in part at least, on the absence from the record of the proceedings before the board of special inquiry, he claiming that it was the duty of the Government to send up that record as part of the proceedings in habeas corpus. It is, of course, elementary that a court cannot base its decision on evidence not of record or take into consideration matters not judicially before it, and the proceeding before the board of special inquiry not being a part of the record, the court had no authority to consider it. The fact that it may have been the duty of the Government to bring up that portion of the record does not alter the rule that a court can consider only the evidence before it. If appellant desired to have the proceedings of the board of special inquiry considered by the Court of First Instance, it was his duty to take such proceedings as would bring them before that court. The fact that it may have been the duty of the Government to bring that record up did not relieve appellant from the duty of making some effort to bring it properly to the attention of the court if he desired to have the benefit which would follow from a consideration thereof. The record does not disclose that the appellant made any effort whatever to present the proceedings of the board of special inquiry or cause them to be presented to the Court of First Instance for consideration in the habeas corpus proceeding. Not having made such effort, and having taken no steps of any kind either to obtain the record or to compel the Government to produce it, it is now too late to base an argument on its absence. A party in an action or proceeding in a court of justice is presumed to know what the record is before that court and if any portion of its necessary to the protection of his interest is absent or defective, it is his duty to take such measures as will remedy the defect. On failure to do so, he, generally speaking, loses his right in the appellate court to make an objection based on such defect; and the appellate court will ordinarily proceed to a consideration of the case on the record as it stands.
The third error assigned is based on the claim that the board of special inquiry, as composed at the time of the hearing of the case of the appellant, was illegal and unauthorized by law and that it was in reality and in law not a board of special inquiry.
This question has frequently been decided by the Supreme Court adversely to the contention of Appellant. (Que Quay v. Insular Collector of Customs, p. 128, ante.) Appellant says in his brief that "the argument on this point is rested upon the argument for the petitioner in the case of Chieng Ah Sui v. Collector of Customs, R. G. No. 6579 (22 Phil. Rep., 361), now on appeal to the Supreme Court of the United States." An official cable has been received by this court stating that the Supreme Court of the United States has affirmed the decision of this court in the case referred to in the quotation, and, while the official record is not before us, we may assume that the board was held to have been properly constituted in that case, as that was one of the principal grounds on which the appeal to the Supreme Court of the United States was based. The board was the same in that case as in the case at bar. (Decision, Supreme Court U.S., Nov. 29, 1915.)
It has been argued generally by the appellant that the whole record before the board of special inquiry and the Collector of Customs should, under the Code of Civil Procedure, have been made part of the return to the writ of habeas corpus; and that accordingly such record should have been part of the proceedings before the Court of First Instance. We are not inclined to agree with this contention. We do not believe that the Insular Collector of Customs is obliged under the law to include in his return the proceedings before the board of special inquiry, or the proceedings before himself in his appellate capacity. Section 538, paragraph 2, of the Code of Civil Procedure requires the person making the return to the writ, if he has the petitioner in custody, to "set forth, at large, the authority and the true and whole cause of such imprisonment and restraint, with a copy of the writ, warrant, execution, or other process, if any, upon which the party is detained." The petition for the writ in this case, as in all other cases of this character, discloses on its face that the petitioner is a person of Chinese descent, in part at least, that he comes from a Chinese port, and that he prays admission to the Philippine Islands by virtue of some right which he sets forth. The return to the writ shows the same facts as the petition, with the addition that, after the proceedings required by law before the customs officials, including a hearing and an opportunity on the part of the petitioner to present evidence as to his alleged rights, he was denied admission to the Philippine Islands on the ground that he had not shown himself entitled to enter under the Chinese Exclusion Laws. These facts demonstrate, the return showing no violation of law or abuse of discretion, that the petitioner is not entitled to enter the Philippine Islands. Is anything more necessary to make the return good? The presumptions of law are against the right of a person of Chinese descent to enter the Philippine Islands and such person, in order to put himself in a position to enter, must overcome the presumption by showing either that he does not fall within the Chinese Exclusion Laws at all or that he is within the class exempt from their operation. These facts and circumstances constitute a sufficient return prima facie to the writ and the section and paragraph of the Code of Civil Procedure above quoted do not seem to us to require anything further. There is no "writ, warrant, execution, or other process" which the customs officials could produce or attach to their return, as none of them are in existence. The decision of the board of special inquiry or the evidence and proceedings taken and had before it or the decision of the Insular Collector of Customs on appeal, cannot be considered a "writ, warrant, execution, or other process." The ordinary definitions of these words do not include the proceedings before the board of special inquiry, its decision, or that of the Collector of Customs on appeal. They are proceedings and judgments in quasi-judicial proceedings before officials who perform in part judicial functions. If by such proceedings a writ, or warrant, or other process were issued, then it might well be claimed that such writ, or warrant, or other process, or a copy thereof, should be attached to the return. In proceedings for writs of habeas corpus in ordinary cases, that is, ion cases not involving the Chinese Exclusion Laws, — for example, where a prisoner who has been convicted believes that he is illegally detained after conviction, — it has never been claimed that, in a return to a writ issued in such case, the official in whose custody the prisoner was, was obliged to attach to his return the evidence, the verdict of the jury, or the decision of the court; and, if an appeal were taken, the decision also of the appellate court. These have never been considered proper accompaniments of a return to a writ of habeas corpus. The return includes simply the warrant, writ, or process by which the official claims to hold the prisoner. Where there is no such warrant, writ, or other process, there is nothing which the law requires to be attached to the writ; and the Code of Civil Procedure expressly provides for a case where no such writ, warrant, or other process exists.
We accordingly hold and decide that in cases of the character of the one at bar the official making the return need not attach thereto the proceedings before the board of special inquiry or those before the Insular Collector of Customs on appeal.
It having been found by the board of special inquiry, and its finding having been affirmed by the Insular Collector of Customs, that the petitioner was not the son of a Filipino woman, and that finding having evidence to support it, the judgment of the Court of First Instance must be affirmed.
The judgment appealed from is affirmed, with costs against the Appellant. So ordered.
Arellano, C.J., Torres, Johnson, Carson, Trent, and Araullo, JJ., concur.
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