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Republic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. L-45685 November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION,petitioners,vs.JOSE O. VERA, Judge .of the Court of First Instance of Manila, and MARIANO CU UNJIENG,respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.

Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent CuUnjieng.No appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorariand of prohibition to the Court of First Instance of Manila so that this court may review the actuations of theaforesaid Court of First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs.Mariano Cu Unjieng, et al.", more particularly the application of the defendant Mariano Cu Unjieng therein forprobation under the provisions of Act No. 4221, and thereafter prohibit the said Court of First Instance from taking

any further action or entertaining further the aforementioned application for probation, to the end that the defendantMariano Cu Unjieng may be forthwith committed to prison in accordance with the final judgment of convictionrendered by this court in said case (G. R. No. 41200). 1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, arerespectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of thedefendants, in the criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.",criminal case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this court. Respondentherein, Hon. Jose O. Vera, is the Judge ad interimof the seventh branch of the Court of First Instance of Manila,who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as privateprosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of time

spent by the court as well as in the volume in the testimony and the bulk of the exhibits presented, the Court of FirstInstance of Manila, on January 8, 1934, rendered a judgment of conviction sentencing the defendant Mariano CuUnjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight years ofprision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and

Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to anindeterminate penalty of from five years and six months of prision correccional to seven years, six months andtwenty-seven days of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed amotion for reconsideration and four successive motions for new trial which were denied on December 17, 1935, andfinal judgment was accordingly entered on December 18, 1935. The defendant thereupon sought to have the caseelevated on certiorarito the Supreme Court of the United States but the latter denied the petition for certiorariin
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November, 1936. This court, on November 24, 1936, denied the petition subsequently filed by the

defendant for leave to file a second alternative motion for reconsideration or new trial and thereafter remanded thecase to the court of origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the herein respondent MarianoCu Unjieng on November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunctPhilippine Legislature. Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent ofthe crime of which he was convicted, that he has no criminal record and that he would observe good conduct in thefuture. The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the application for probation of

the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter, the Court of FirstInstance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the hereinrespondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, amongother things, that Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the Constitution,is nevertheless violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection ofthe laws for the reason that its applicability is not uniform throughout the Islands and because section 11 of the said

Act endows the provincial boards with the power to make said law effective or otherwise in their respective orotherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19,1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power tothe provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the oppositionof the private prosecution except with respect to the questions raised concerning the constitutionality of Act No.4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "laspruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechosprobados no son inconsistentes o incongrentes con su inocencia" and concludes that the herein respondentMariano Cu Unjieng "es inocente por duda racional" of the crime of which he stands convicted by this court in G.R.No. 41200, but denying the latter's petition for probation for the reason that:

. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que sehan expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte dela opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema deprobacion que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietudy la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes, enmenoscabo del interes publico que demanda el respeto de las leyes y del veredicto judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolutiondenying probation and a notice of intention to file a motion for reconsideration. An alternative motion forreconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented by an additional motionfor reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, butsaid hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a motion forleave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with thetrial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition forleave to withdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amicicuriae was circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, andthat he signed the same "without mature deliberation and purely as a matter of courtesy to the person who invitedme (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an

order of execution of the judgment of this court in said case and forthwith to commit the herein respondent MarianoCu Unjieng to jail in obedience to said judgment.

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amicicuriae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said motionshould be denied with respect to certain attorneys signing the same who were members of the legal staff of theseveral counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued anorder requiring all parties including the movants for intervention as amici curiaeto appear before the court on August14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his motion forexecution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection ofcounsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondent


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judge thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to consider themotion for leave to intervene as amici curiaeas in order. Evidence as to the circumstances under which said motionfor leave to intervene as amici curiaewas signed and submitted to court was to have been heard on August 19,1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to put an end to whatthey alleged was an interminable proceeding in the Court of First Instance of Manila which fostered "the campaignof the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this Honorable Court onhim, exposing the courts to criticism and ridicule because of the apparent inability of the judicial machinery to makeeffective a final judgment of this court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporaryrestraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, hereinpetitioners allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng underprobation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply onlyto the provinces of the Philippines; it nowhere states that it is to be made applicable to charteredcities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in the

absence of a special provision, the term "province" may be construed to include the City ofManila for the purpose of giving effect to laws of general application, it is also true that Act No.4221 is not a law of general application because it is made to apply only to those provinces inwhich the respective provincial boards shall have provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not beapplicable to it because it has provided for the salary of a probation officer as required by section11 thereof; it being immaterial that there is an Insular Probation Officer willing to act for the Cityof Manila, said Probation Officer provided for in section 10 of Act No. 4221 being different anddistinct from the Probation Officer provided for in section 11 of the same Act.

II. Because even if the respondent judge originally had jurisdiction to entertain the application forprobation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in

excess thereof in continuing to entertain the motion for reconsideration and by failing to commitMariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denyingMariano Cu Unjieng's application for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the grantingor denying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June28, 1937, it became final and executory at the moment of its rendition.

(3) No right on appeal exists in such cases.

(4) The respondent judge lacks the power to grant a rehearing of said order or to modify orchange the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime forwhich he was convicted by final judgment of this court, which finding is not only presumptuous butwithout foundation in fact and in law, and is furthermore in contempt of this court and a violation of therespondent's oath of office as ad interimjudge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which becameimperative when he issued his order of June 28, 1937, denying the application for probation, to commithis co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary


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.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and ShanghaiBanking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for asystem of probation for persons eighteen years of age or over who are convicted of crime, isunconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of thePhilippines guaranteeing equal protection of the laws because it confers upon the provincial board of itsprovince the absolute discretion to make said law operative or otherwise in their respective provinces,because it constitutes an unlawful and improper delegation to the provincial boards of the severalprovinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature andby the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it givesthe provincial boards, in contravention of the Constitution (section 2, Art. VIII) and the Jones Law(section 28), the authority to enlarge the powers of the Court of First Instance of different provinceswithout uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the Cityof Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the firsttime with the issues raised by other petitioner regarding the constitutionality of Act No. 4221, and onthe oral argument held on October 6, 1937, further elaborated on the theory that probation is a form ofreprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief Executiveto grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in whichhe contended that Act No. 4221 not only encroaches upon the pardoning power to the executive, butalso constitute an unwarranted delegation of legislative power and a denial of the equal protection ofthe laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine Islands, and by counsel for the petitioner, the

Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to impugn thevalidity of its own laws and the other contending that Act No. 4221 constitutes an unwarranteddelegation of legislative power, were presented. Another joint memorandum was filed by the samepersons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because itdenies the equal protection of the laws and constitutes an unlawful delegation of legislative power and,further, that the whole Act is void: that the Commonwealth is not estopped from questioning the validityof its laws; that the private prosecution may intervene in probation proceedings and may attack theprobation law as unconstitutional; and that this court may pass upon the constitutional question inprohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument andmemorandums, challenge each and every one of the foregoing proposition raised by the petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the issuance of thewrit of certiorarior of prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the petitioners is thevery same remedy prayed for by them before the trial court and was still pending resolutionbefore the trial court when the present petition was filed with this court.

(3) That the petitioners having themselves raised the question as to the execution of judgmentbefore the trial court, said trial court has acquired exclusive jurisdiction to resolve the sameunder the theory that its resolution denying probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of FirstInstance to decide the question as to whether or not the execution will lie, this court neverthelesscannot exercise said jurisdiction while the Court of First Instance has assumed jurisdiction overthe same upon motion of herein petitioners themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trialcourt of its jurisdiction over the case and elevate the proceedings to this court, should not betolerated because it impairs the authority and dignity of the trial court which court while sitting inthe probation cases is "a court of limited jurisdiction but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the question submitted to


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,of the trial court denying probation is appealable; for although the Probation Law does notspecifically provide that an applicant for probation may appeal from a resolution of the Court ofFirst Instance denying probation, still it is a general rule in this jurisdiction that a final order,resolution or decision of an inferior court is appealable to the superior court.

(7) That the resolution of the trial court denying probation of herein respondent Mariano CuUnjieng being appealable, the same had not become final and executory for the reason that thesaid respondent had filed an alternative motion for reconsideration and new trial within therequisite period of fifteen days, which motion the trial court was able to resolve in view of therestraining order improvidently and erroneously issued by this court.lawphi1.net

(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trialcourt denying probation is not final and unappealable when he presented his answer to themotion for reconsideration and agreed to the postponement of the hearing of the said motion.

(9) That under the supposition that the order of the trial court denying probation is notappealable, it is incumbent upon the accused to file an action for the issuance of the writ ofcertiorariwith mandamus, it appearing that the trial court, although it believed that the accusedwas entitled to probation, nevertheless denied probation for fear of criticism because theaccused is a rich man; and that, before a petition for certiorarigrounded on an irregular exerciseof jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a motion forreconsideration specifying the error committed so that the trial court could have an opportunity to

correct or cure the same.

(10) That on hypothesis that the resolution of this court is not appealable, the trial court retainsits jurisdiction within a reasonable time to correct or modify it in accordance with law and justice;that this power to alter or modify an order or resolution is inherent in the courts and may beexercise either motu proprio or upon petition of the proper party, the petition in the latter casetaking the form of a motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as respondentallege, said court cannot order execution of the same while it is on appeal, for then the appealwould not be availing because the doors of probation will be closed from the moment theaccused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d],827).

In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 isconstitutional because, contrary to the allegations of the petitioners, it does not constitute an undue delegation oflegislative power, does not infringe the equal protection clause of the Constitution, and does not encroach upon thepardoning power of the Executive. In an additional memorandum filed on the same date, counsel for therespondents reiterate the view that section 11 of Act No. 4221 is free from constitutional objections and contend, inaddition, that the private prosecution may not intervene in probation proceedings, much less question the validity of

Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of theAct; that the validity of Act cannot be attacked for the first time before this court; that probation in unavailable; andthat, in any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for therespondent Mariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of thiscourt and filed anew on November 5, 1937. This memorandum elaborates on some of the points raised bythe respondents and refutes those brought up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that thecourt below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying saidapplication assumed the task not only of considering the merits of the application, but of passing upon the culpabilityof the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation impliesguilt be final judgment. While a probation case may look into the circumstances attending the commission of theoffense, this does not authorize it to reverse the findings and conclusive of this court, either directly or indirectly,especially wherefrom its own admission reliance was merely had on the printed briefs, averments, and pleadings ofthe parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated insubsequent cases, "if each and every Court of First Instance could enjoy the privilege of overruling decisions of theSupreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferiorcourts demands conscious realization of the position that they occupy in the interrelation and operation of the


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intergrated judicial system of the nation.

After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents,this court prefers to cut the Gordian knot and take up at once the two fundamental questions presented, namely, (1)whether or not the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in theaffirmative, whether or not said Act is constitutional. Considerations of these issues will involve a discussion ofcertain incidental questions raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a

well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless thatquestion is properly raised and presented inappropriate cases and is necessary to a determination of the case; i.e.,the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil.,563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions.Nevertheless, resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinarycourse of law even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone([1922]), 42Phil., 818), this court held that the question of the constitutionality of a statute may be raised by the petitioner inmandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine Islands vs. Springer([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law.ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought in thename of the Government of the Philippines. It has also been held that the constitutionality of a statute may bequestioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), althoughthere are authorities to the contrary; on an application for injunction to restrain action under the challenged statute

(mandatory, seeCruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunctionwhere the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.) Thesame may be said as regardsprohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R.,854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra,decided by this court twelve years ago was, like the present one, an original action for certiorariand prohibition. Theconstitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was there challenged by thepetitioners, and the constitutional issue was not met squarely by the respondent in a demurrer. A point was raised"relating to the propriety of the constitutional question being decided in original proceedings in prohibition." Thiscourt decided to take up the constitutional question and, with two justices dissenting, held that Act No. 2972 wasconstitutional. The case was elevated on writ of certiorarito the Supreme Court of the United States which reversedthe judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of

jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court isgranted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, andoriginal jurisdiction over courts of first instance, when such courts are exercising functions without or inexcess of their jurisdiction. It has been held by that court that the question of the validity of the criminal statutemust usually be raised by a defendant in the trial court and be carried regularly in review to the SupremeCourt. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new actseriously affected numerous persons and extensive property rights, and was likely to cause a multiplicity ofactions, the Supreme Court exercised its discretion to bring the issue to the act's validity promptly before itand decide in the interest of the orderly administration of justice. The court relied by analogy upon the casesof Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann.Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann.

Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct.Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise by demurrer to thepetition, this is now disclaimed on behalf of the respondents, and both parties ask a decision on the merits. Inview of the broad powers in prohibition granted to that court under the Island Code, we acquiesce in thedesire of the parties.

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directedto an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is notlegally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in thecases, is that the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statutethe constitutionalit of which is uestioned, because in such cases the interior court havin urisdiction ma itself


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determine the constitutionality of the statute, and its decision may be subject to review, and consequently thecomplainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. Butwhere the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be

prevented by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parteRound tree [1874, 51 Ala.,42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs.Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221

which prescribes in detailed manner the procedure for granting probation to accused persons after their convictionhas become final and before they have served their sentence. It is true that at common law the authority of thecourts to suspend temporarily the execution of the sentence is recognized and, according to a number of statecourts, including those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts(Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W.,497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616).But, in the leading case of Ex parteUnited States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that under

the common law the power of the court was limited to temporary suspension, and brushed aside the contention asto inherent judicial power saying, through Chief Justice White:

Indisputably under our constitutional system the right to try offenses against the criminal laws and uponconviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, inexerting the powers vested in them on such subject, courts inherently possess ample right to exercisereasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessionsafford no ground for the contention as to power here made, since it must rest upon the proposition that thepower to enforce begets inherently a discretion to permanently refuse to do so. And the effect of theproposition urged upon the distribution of powers made by the Constitution will become apparent when it isobserved that indisputable also is it that the authority to define and fix the punishment for crime is legislativeand includes the right in advance to bring within judicial discretion, for the purpose of executing the statute,elements of consideration which would be otherwise beyond the scope of judicial authority, and that the rightto relieve from the punishment, fixed by law and ascertained according to the methods by it provided belongsto the executive department.

Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of FirstInstance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to

suspend the execution of sentences pronounced in criminal cases is not inherent in the judicial function. "All areagreed", he said, "that in the absence of statutory authority, it does not lie within the power of the courts to grantsuch suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a Courtof First Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedingsis conferred exclusively by Act No. 4221 of the Philippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on application for prohibitionwhere the question has not been properly brought to the attention of the court by objection of some kind (Hill vs.Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In thecase at bar, it is unquestionable that the constitutional issue has been squarely presented not only before this courtby the petitioners but also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera,however, acting as judge of the court below, declined to pass upon the question on the ground that the privateprosecutor, not being a party whose rights are affected by the statute, may not raise said question. The respondent

judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs.Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will notconsider any attack made on the constitutionality of a statute by one who has no interest in defeating it because hisrights are not affected by its operation. The respondent judge further stated that it may not motu proprio take up theconstitutional question and, agreeing with Cooley that "the power to declare a legislative enactment void is onewhich the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where hecan conscientiously and with due regard to duty and official oath decline the responsibility" (ConstitutionalLimitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore,the court a quo admits that the constitutional question was raised before it, it refused to consider the question solelybecause it was not raised by a proper party. Respondents herein reiterates this view. The argument is advancedthat the private prosecution has no personality to appear in the hearing of the application for probation of defendant


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Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue ofconstitutionality was not properly raised in the lower court. Although, as a general rule, only those who are parties toa suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since thedecree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validityof the statute in question, the issue of the constitutionality will be considered on its being brought to the attention ofthe court by persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we wereto concede that the issue was not properly raised in the court below by the proper party, it does not follow that theissue may not be here raised in an original action of certiorariand prohibitions. It is true that, as a general rule, thequestion of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings,

ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J.,p. 786. See, also,Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that

the general rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine the time when aquestion affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.)Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may beraised for the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Evenin civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised forthe first time on appeal, if it appears that a determination of the question is necessary to a decision of the case.(McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. LouisCordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S.W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time,where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the

power of this court to consider the constitutional question raised for the first time before this court in theseproceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on thehypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not theproper party to raise the constitutional question here a point we do not now have to decide we are of theopinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila,is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validityof a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained,direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the constitution,the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it setaside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal woundinflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that thestate can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845),this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of thePhilippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State ofMichigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents torenew a mining corporation, alleging that the statute under which the respondents base their right wasunconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state toquestion the constitutionality of the statute was though, as a general rule, only those who are parties to a suit mayquestion the constitutionality of a statute involved in a judicial decision, it has been held that since the decreepronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the validity of thestatute in question, the issue of constitutionality will be considered on its being brought to the attention of the courtby persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concedethat the issue was not properly raised in the court below by the proper party, it does not follow that the issue may notbe here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question ofconstitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may notbe raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also,

Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general ruleadmits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affectingthe constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminalcases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first timeat any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it hasbeen held that it is the duty of a court to pass on the constitutional question, though raised for first time on appeal, ifit appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs.Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo.685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been heldthat a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of


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. , ., ., .constitutional question raised for the first time before this court in these proceedings, we turn again and point withemphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & ShanghaiBanking Corporation, represented by the private prosecution, is not the proper party to raise the constitutionalquestion here a point we do not now have to decide we are of the opinion that the People of the Philippines,represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present

proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personaland substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of itsenforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the

Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greaterimport than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon thefundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challengethe validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed inSpringer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared anact of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In

Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan,through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew amining corporation, alleging that the statute under which the respondents base their right was unconstitutionalbecause it impaired the obligation of contracts. The capacity of the chief law officer of the state to question theconstitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a law enacted

by their representatives; that to an accusation by the people of Michigan of usurpation their government, astatute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if thestatute relied on in justification is unconstitutional, it is statute only in form, and lacks the force of law, and isof no more saving effect to justify action under it than if it had never been enacted. The constitution is thesupreme law, and to its behests the courts, the legislature, and the people must bow . . . The legislature andthe respondents are not the only parties in interest upon such constitutional questions. As was remarked byMr. Justice Story, in speaking of an acquiescence by a party affected by an unconstitutional act of thelegislature: "The people have a deep and vested interest in maintaining all the constitutional limitations uponthe exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought bythe Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the questionwhether or not the state may bring the action, the Supreme Court of Kansas said:

. . . the state is a proper party indeed, the proper party to bring this action. The state is alwaysinterested where the integrity of its Constitution or statutes is involved.

"It has an interest in seeing that the will of the Legislature is not disregarded, and neednot, as an individual plaintiff must, show grounds of fearing more specific injury. (State vs.Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.)

Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or countyattorney, may exercise his bet judgment as to what sort of action he will bring to have the matter determined,either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A.,662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or byinjunction to restrain proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan.

App., 319; 45 Pac., 122).

Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W.,1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs.Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8,10, 11). In the case last cited, the Supreme Court of Luisiana said:

It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty ofenforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument threedecisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann.,1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592);


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and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512).These decisions do not forbid a district attorney to plead that a statute is unconstitutional if he finds if inconflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the rulingwas the judge should not, merely because he believed a certain statute to be unconstitutional forbid thedistrict attorney to file a bill of information charging a person with a violation of the statute. In other words, a

judge should not judicially declare a statute unconstitutional until the question of constitutionality is tenderedfor decision, and unless it must be decided in order to determine the right of a party litigant. State ex rel.Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom a statute imposes theduty of enforcing its provisions cannot avoid the duty upon the ground that he considers the statute

unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute beunconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers,e.g., the state auditor and state treasurer, should not decline to perform ministerial duties imposed upon themby a statute, on the ground that they believe the statute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support theConstitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other, orone which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty toenforce the other; and, in order to do so, he is compelled to submit to the court, by way of a plea, that one ofthe statutes is unconstitutional. If it were not so, the power of the Legislature would be free from constitutionallimitations in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that the state may

impugn the validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact,they appear to have proceeded on the assumption that the rule as stated is sound but that it has no application inthe present case, nor may it be invoked by the City Fiscal in behalf of the People of the Philippines, one of thepetitioners herein, the principal reasons being that the validity before this court, that the City Fiscal is estopped fromattacking the validity of the Act and, not authorized challenge the validity of the Act in its application outside saidcity. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)

The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not beenattacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him asconstitutional, is no reason for considering the People of the Philippines estopped from nor assailing its validity. Forcourts will pass upon a constitutional questions only when presented before it in bona fidecases for determination,and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raisedlater. The fiscal and all others are justified in relying upon the statute and treating it as valid until it is held void by thecourts in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to theresolution of the instant case. For, ". . . while the court will meet the question with firmness, where its decision isindispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case inwhich it arises, can be decided on other points." (Ex parteRandolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447.Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutionalquestion is necessary whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev.Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas.1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right ofa party is founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs.Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubtthat the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Actis a new addition to our statute books and its validity has never before been passed upon by the courts; that maypersons accused and convicted of crime in the City of Manila have applied for probation; that some of them arealready on probation; that more people will likely take advantage of the Probation Act in the future; and that the

respondent Mariano Cu Unjieng has been at large for a period of about four years since his first conviction. All waitthe decision of this court on the constitutional question. Considering, therefore, the importance which the instantcase has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that theconstitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S.,500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444;

Ann. Cas. 1914C 616 Bor inis vs. Falk Co. 1911 147 Wis. 327 133 N.W. 209 211 37 L.R.A. N.S. 489


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Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogoussituation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousandmerchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by thecourts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrulethe defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinarysituation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the SupremeCourt of the United States. A more binding authority in support of the view we have taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly

raised. Now for the main inquiry: Is the Act unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. Thiscourt, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of theConstitution, may declare an act of the national legislature invalid because in conflict with the fundamental lay. It willnot shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to thesupreme law by setting aside a statute in conflict therewith. This is of the essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts shouldbe resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, ispresumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on thecourts alone but on the legislature as well. "The question of the validity of every statute is first determined by thelegislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Healthand Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before thecourts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive havetaken an oath to support the Constitution and it must be presumed that they have been true to this oath and that inenacting and sanctioning a particular law they did not intend to violate the Constitution. The courts cannot butcautiously exercise its power to overturn the solemn declarations of two of the three grand departments of thegovernments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect thewisdom of the people as expressed through an elective Legislature and an elective Chief Executive. It follows,therefore, that the courts will not set aside a law as violative of the Constitution except in a clear case. This is aproposition too plain to require a citation of authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention to the factthat the President of the Philippines had already expressed his opinion against the constitutionality of the Probation

Act, adverting that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however,reiterated his confidence in the integrity and independence of this court. We take notice of the fact that the President

in his message dated September 1, 1937, recommended to the National Assembly the immediate repeal of theProbation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality Assemblyrepealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by thePresident on September 13, 1937, much against his wish, "to have stricken out from the statute books of theCommonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this connection that, invetoing the bill referred to, the President exercised his constitutional prerogative. He may express the reasons whichhe may deem proper for taking such a step, but his reasons are not binding upon us in the determination of actualcontroversies submitted for our determination. Whether or not the Executive should express or in any mannerinsinuate his opinion on a matter encompassed within his broad constitutional power of veto but which happens tobe at the same time pending determination in this court is a question of propriety for him exclusively to decide ordetermine. Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgmenton way or another and prevent us from taking what in our opinion is the proper course of action to take in a given

case. It if is ever necessary for us to make any vehement affirmance during this formative period of our political

history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent topopularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroachesupon the pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3)that it denies the equal protection of the laws.

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at thetime of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of thePhilippines "the exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is now


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vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and theConstitution differ in some respects. The adjective "exclusive" found in the Jones Law has been omitted from theConstitution. Under the Jones Law, as at common law, pardon could be granted any time after the commission ofthe offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok[1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of theUnited States, to pardon a person before the facts of the case were fully brought to light. The framers of ourConstitution thought this undesirable and, following most of the state constitutions, provided that the pardoningpower can only be exercised "after conviction". So, too, under the new Constitution, the pardoning power does notextend to "cases of impeachment". This is also the rule generally followed in the United States (VideConstitution of

the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar ofan impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is notunderstood that the king's royal grace is further restrained or abridged." (Vide, Ex parteWells [1856], 18 How., 307;15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 OhioSt., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England, Judgment on impeachment is notconfined to mere "removal from office and disqualification to hold and enjoy any office of honor, trust, or profit underthe Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached bylaw to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment,perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offensecommitted, together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) OurConstitution also makes specific mention of "commutation" and of the power of the executive to impose, in thepardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may begranted by the President under the Constitution but only with the concurrence of the National Assembly. We need

not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes to state that thepardoning power has remained essentially the same. The question is: Has the pardoning power of the ChiefExecutive under the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exerciseof the power may not, therefore, be vested in anyone else.". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislativerestrictions, nor can like power be given by the legislature to any other officer or authority. The coordinatedepartments of government have nothing to do with the pardoning power, since no person properly belonging to oneof the departments can exercise any powers appertaining to either of the others except in cases expressly providedfor by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on theexecutive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise suchpower itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp.838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason

unconstitutional and void. But does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruledin 1916 that an order indefinitely suspending sentenced was void. (Ex parteUnited States [1916], 242 U.S., 27; 61Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after anexhaustive review of the authorities, expressed the opinion of the court that under the common law the power of the

court was limited to temporary suspension and that the right to suspend sentenced absolutely and permanently wasvested in the executive branch of the government and not in the judiciary. But, the right of Congress to establishprobation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the future isconcerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or suchother means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts tomeet by the exercise of an enlarged but wise discretion the infinite variations which may be presented to them for

judgment, recourse must be had Congress whose legislative power on the subject is in the very nature of things

adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the NationalProbation Association and others to agitate for the enactment by Congress of a federal probation law. Such actionwas finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by anappropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service.(Johnson, Probation for Juveniles and Adults, p. 14.)

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the SupremeCourt of the United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by adistrict court has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 togrant him probation even though the term at which sentence was imposed had not yet expired. In this case ofMurra the constitutionalit of the robation Act was not considered but was assumed. The court traced the histor


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of the Act and quoted from the report of the Committee on the Judiciary of the United States House ofRepresentatives (Report No. 1377, 68th Congress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form ofprobation either, by suspending sentence or by placing the defendants under state probation officers orvolunteers. In this case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178;37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts tosuspend sentenced. In the same opinion the court pointed out the necessity for action by Congress if thecourts were to exercise probation powers in the future . . .

Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917,a bill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciaryCommittee again favorably reported a probation bill to the House, but it was never reached for definite action.

If this bill is enacted into law, it will bring the policy of the Federal government with reference to itstreatment of those convicted of violations of its criminal laws in harmony with that of the states of the Union.

At the present time every state has a probation law, and in all but twelve states the law applies both to adultand juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs.United States supra, the Circuit Court of Appeals of the Fourth Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been

reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of theact fully sustained, and the same held in no manner to encroach upon the pardoning power of the President.This case will be found to contain an able and comprehensive review of the law applicable here. It aroseunder the act we have to consider, and to it and the authorities cited therein special reference is made (Nixvs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit(Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language,pointed to Congress as possessing the requisite power to enact probation laws, that a federal probation law asactually enacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme Court of theUnited States in 1928 and consistently sustained by the inferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally

enact a probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion issupported by other authorities. In Ex parteBates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, thecourt said: "It is clearly within the province of the Legislature to denominate and define all classes of crime, and toprescribe for each a minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A.[N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crimeis very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, thelargest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether itshould be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.)Indeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, thelegislature has demonstrated the desire to vest in the courts particularly the trial courts large discretion inimposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served byvesting this power in the courts, they being in a position to best determine the penalties which an individual convict,peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence

merely because, taking into consideration the degree of malice and the injury caused by the offense, the penaltyprovided by law is clearly excessive, the courts being allowed in such case to submit to the Chief Executive, throughthe Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in cases whereboth mitigating and aggravating circumstances are attendant in the commission of a crime and the law provides fora penalty composed of two indivisible penalties, the courts may allow such circumstances to offset one another inconsideration of their number and importance, and to apply the penalty according to the result of suchcompensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again,article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of eachperiods, in case the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. Inthe imposition of fines, the courts are allowed to fix any amount within the limits established by law, considering not


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, . . ,Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall beimposed" upon a person under fifteen but over nine years of age, who has not acted without discernment, butalways lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 ofthe same Code provides that in case of "incomplete self-defense", i.e., when the crime committed is not whollyexcusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminalliability in the several cases mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in theperiod which may be deemed proper, in view of the number and nature of the conditions of exemption present orlacking." And, in case the commission of what are known as "impossible" crimes, "the court, having in mind thesocial danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or afine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form theentire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposedwhen the guilty person is more than seventy years of age, or where upon appeal or revision of the case by theSupreme Court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of thedeath penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3);the death sentence is not to be inflicted upon a woman within the three years next following the date of the sentenceor while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convict shall becomeinsane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the executionof said sentence shall be suspended with regard to the personal penalty during the period of such insanity orimbecility (art. 79).

But the desire of the legislature to relax what might result in the undue harshness of the penal laws is moreclearly demonstrated in various other enactments, including the probation Act. There is the Indeterminate SentenceLaw enacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole(secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the law. Section 1 of the law asamended provides; "hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code,or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of whichshall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said

Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code forthe offense; and if the offense is punished by any other law, the court shall sentence the accused to anindeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and theminimum shall not be less than the minimum term prescribed by the same." Certain classes of convicts are, bysection 2 of the law, excluded from the operation thereof. The Legislature has also enacted the JuvenileDelinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Actand section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National Assembly. In this

Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, themodification in particular cases of the penalties prescribed by law by permitting the suspension of the execution ofthe judgment in the discretion of the trial court, after due hearing and after investigation of the particularcircumstances of the offenses, the criminal record, if any, of the convict, and his social history. The Legislature hasin reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as the conditionsof probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in conflict withthe power of the Chief Executive to grant pardons and reprieves, because, to use the language of the SupremeCourt of New Mexico, "the element of punishment or the penalty for the commission of a wrong, while to be declaredby the courts as a judicial function under and within the limits of law as announced by legislative acts, concernssolely the procedure and conduct of criminal causes, with which the executive can have nothing to do." ( Ex parteBates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of

the Georgia probation statute against the contention that it attempted to delegate to the courts the pardoning powerlodged by the constitution in the governor alone is vested with the power to pardon after final sentence has beenimposed by the courts, the power of the courts to imposed any penalty which may be from time to time prescribedby law and in such manner as may be defined cannot be questioned."

We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for thelegislature to vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as todo so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356;46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev.,150; 182 Pac., 927; Ex parteClendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041;


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functions to suspend sentence, and it was never intended that the authority to grant reprieves and pardonsshould abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments, thatcriminal courts has so long maintained. The two powers, so distinct and different in their nature and character,were still left separate and distinct, the one to be exercised by the executive, and the other by the judicialdepartment. We therefore conclude that a statute which, in terms, authorizes courts of criminal jurisdiction tosuspend sentence in certain cases after conviction, a power inherent in such courts at common law, whichwas understood when the constitution was adopted to be an ordinary judicial function, and which, ever sinceits adoption, has been exercised of legislative power under the constitution. It does not encroach, in any justsense, upon the powers of the executive, as they have been understood and practiced from the earliest

times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265,Carson, J., concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completelyexonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act, theprobationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of the Act providesthat the probation may be definitely terminated and the probationer finally discharged from supervision only after theperiod of probation shall have been terminated and the probation officer shall have submitted a report, and the courtshall have found that the probationer has complied with the conditions of probation. The probationer, then, during

the period of probation, remains in legal custody subject to the control of the probation officer and of the court;and, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may becommitted to prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)

The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It isreally a new mode of punishment, to be applied by the judge in a proper case, in substitution of theimprisonment and find prescribed by the criminal laws. For this reason its application is as purely a judicial actas any other sentence carrying out the law deemed applicable to the offense. The executive act of pardon, onthe contrary, is against the criminal law, which binds and directs the judges, or rather is outside of and aboveit. There is thus no conflict with the pardoning power, and no possible unconstitutionality of the Probation Actfor this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs.State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by thepetitioners as authority in support of their contention that the power to grant pardons and reprieves, having beenvested exclusively upon the Chief Executive by the Jones Law, may not be conferred by the legislature upon thecourts by means of probation law authorizing the indefinite judicial suspension of sentence. We have examined thatcase and found that although the Court of Criminal Appeals of Texas held that the probation statute of the state in

terms conferred on the district courts the power to grant pardons to persons convicted of crime, it also distinguishedbetween suspensions sentence on the one hand, and reprieve and commutation of sentence on the other. Said thecourt, through Harper, J.:

That the power to suspend the sentence does not conflict with the power of the Governor to grantreprieves is settled by the decisions of the various courts; it being held that the distinction between a"reprieve" and a suspension of sentence is that a reprieve postpones the execution of the sentence to a daycertain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In reBuchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This lawcannot be hold in conflict with the power confiding in the Governor to grant commutations of punishment, for acommutations is not but to change the punishment assessed to a less punishment.

In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of

Montana had under consideration the validity of the adult probation law of the state enacted in 1913, now found insections 12078-12086, Revised Codes of 1921. The court held the law valid as not impinging upon the pardoningpower of the executive. In a unanimous decision penned by Justice Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the timeour Constitution was adopted, and no one of them was intended to comprehend the suspension of theexecution of the judgment as that phrase is employed in sections 12078-12086. A "pardon" is an act of grace,proceeding from the power intrusted with the execution of the laws which exempts the individual on whom it isbestowed from the punishment the law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet.,150; 8 Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness ofthe offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71).


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"Commutation" is a remission of a part of the punishment; a substitution of a less penalty for the one originallyimposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N.W., 235). A "reprieve" or "respite" is the withholding of the sentence for an interval of time (4 Blackstone'sCommentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), atemporary suspension of execution (Butler vs. State, 97 Ind., 373).

Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 hasbeen determined; but the same objections have been urged against parole statutes which vest the power toparole in persons other than those to whom the power of pardon is granted, and these statutes have been

upheld quite uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)

We conclude that the Probation Act does not conflict with the pardoning power of the Executive. Thepardoning power, in respect to those serving their probationary sentences, remains as full and complete as if theProbation Law had never been enacted. The President may yet pardon the probationer and thus place it beyond thepower of the court to order his rearrest and imprisonment. (Riggs vs. United States [1926],14 F. [2d], 5, 7.)

2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not forthat reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative power?

Under the constitutional system, the powers of government are distributed among three coordinate and

substantially independent organs: the legislative, the executive and the judicial. Each of these departments of thegovernment derives its authority from the Constitution which, in turn, is the highest expression of popular will. Eachhas exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere.

The power to make laws the legislative power is vested in a bicameral Legislature by the Jones Law(sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines).The Philippine Legislature or the National Assembly may not escape its duties and responsibilities by delegating thatpower to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principlethat potestas delegata non delegare potest. This principle is said to have originated with the glossators, wasintroduced into English law through a misreading of Bracton, there developed as a principle of agency, wasestablished by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and foundits way into America as an enlightened principle of free government. It has since become an accepted corollary ofthe principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule isthat of Locke,

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