People vs Vera

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

Facts: The Probation Law provided that the probation system shall be applicable only in

those provinces in which the respective provincial boards have provided for the salary of

a probation officer.

Issue: Whether Act No. 4221 (Probation Law) is violative of the equal protection clause

and is therefore unconstitutional.

Held: Act No. 4221 is hereby declared unconstitutional and void.

This basic individual right sheltered by the Constitution is a restraint on all the three

grand departments of our government and on the subordinate instrumentalities and

subdivisions thereof, and on many constitutional powers, like the police power, taxation

and eminent domain.

In the case at bar, however, the resultant inequality may be said to flow from the

unwarranted delegation of legislative power, although perhaps this is not necessarily the

result in every case. Adopting the example given by one of the counsel for the petitioners

in the course of his oral argument, one province may appropriate the necessary fund to

defray the salary of a probation officer, while another province may refuse or fail to do

so. In such a case, the Probation Act would be in operation in the former province but not

in the latter. This means that a person otherwise coming within the purview of the law

would be liable to enjoy the benefits of probation in one province while another person

similarly situated in another province would be denied those same benefits. This is

obnoxious discrimination. Contrariwise, it is also possible for all the provincial boards to

appropriate the necessary funds for the salaries of the probation officers in their

respective provinces, in which case no inequality would result for the obvious reason

that probation would be in operation in each and every province by the affirmative

action of appropriation by all the provincial boards. On that hypothesis, every person

coming within the purview of the Probation Act would be entitled to avail of the benefits

of the Act. Neither will there be any resulting inequality if no province, through its

provincial board, should appropriate any amount for the salary of the probation officer—

which is the situation now—and, also, if we accept the contention that, for the purposes

of the Probation Act, the City of Manila should be considered as a province and that the

municipal board of said city has not made any appropriation for the salary of a probation

officer. These different situations suggested show, indeed, that while inequality may

result in the application of the law and in the conferment of the benefits therein

provided, inequality is not in all cases the necessary result. But whatever may be the

case, it is clear that section 11 of the Probation Act creates a situation in which

discrimination and inequality are permitted or allowed. There are, to be sure, abundant

authorities requiring actual denial of the equal protection of the law before courts should

assume the task of setting aside a law vulnerable on that score, but premises and

circumstances considered, we are of the opinion that section 11 of Act No. 4221

permits of the denial of the equal protection of the law and is on that account bad .

We see no difference between a law which denies equal protection and a law which

permits of such denial. A law may appear to be fair on its face and impartial in

appearance, yet, if it permits of unjust and illegal discrimination, it is within the

constitutional prohibition.

[ G. R. No. 45685, November 16, 1937 ]

THE PEOPLE OF THE PHILIPPINE ISLANDS AND THE HONGKONG & SHANGHAI

BANKING CORPORATION, PETITIONERS, VS. JOSE O. VERA, JUDGE AD INTERIM OF

THE COURT OF FIRST INSTANCE OF MANILA, AND MARIANO CIR UNJIENG,

RESPONDENTS.

D E C I S I O N

LAUREL, J.:

This is an original action instituted in this court on August 19, 1937, for the issuance of

the writs of certiorari and of prohibition to the Court of First Instance of Manila so that

this court may review the actuations of the aforesaid 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 for

probation 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 defendant Mariano Cu Unjieng may be

forthwith committed to prison in accordance with the final judgment of conviction

rendered by this court in said case (G. R. No. 41200).[1]

Petitioners herein, the People of the Philippine Islands and the Hongkong and Shanghai

Banking Corporation, are respectively the plaintiff and the offended party, and the

respondent herein Mariano Cu Unjieng is one of the defendants, 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.

Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of 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 October 15, 1931, petitioner herein Hongkong and Shanghai Banking

Corporation intervening in the case as private prosecutor. 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 of the testimony and the bulk of exhibits presented, the

Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction

sentencing the defendant Mariano Cu Unjieng to an indeterminate penalty ranging from

four years and two months of prision correccional to eight years of prision 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 an indeterminate penalty of from five years and six months of prision

correccional to seven years, six months and twenty-seven days of prision mayor, but

affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for

reconsideration and four successive motions for new trial which were denied on

December 17,1935, and final judgment was accordingly entered on December 18, 1935.

The defendant thereupon sought to have the case elevated on certiorari to the Supreme

Court of the United States but the latter denied the petition for certiorari in 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 the case 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 Mariano Cu Unjieng on November 27, 1936, before the trial court, under the

provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent

Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of

which he was convicted, that he has no criminal record and that he would observe good

conduct in the future. The Court of First Instance of Manila, Judge Pedro Tuason

presiding, referred the application for probation to the Insular Probation Office which

recommended denial of the same on June 18, 1937. Thereafter, the Court of First

Instance 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 herein respondent Mariano Cu Unjieng. The private prosecution also

filed an opposition on April 5, 1937, alleging, among other 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 of the laws for the reason that its applicability is not

uniform throughout the Islands and because section 11 of said Act No. 4221 endows the

provincial boards with the power to make said law effective or otherwise in their

respective provinces. The private prosecution also filed a supplementary opposition on

April 19, 1937, elaborating on the alleged unconstitutionally of Act No. 4221, as an undue

delegation of legislative power to the provincial boards of several provinces (sec. 1, Art.

VI, Constitution). The City Fiscal concurred in the opposition of 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 "las pruebas no han establecido de una manera concluyente la culpabilidad

del peticionario y que todos los hechos probados no son inconsistentes o incongruentes

con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es

inocente por duda rational" of the crime for which he stands convicted by this court in G.

R. No. 41200, but denying the latter's petition for probation for the reason that:

"* * * este Juzgado concediera la probacion solicitada por las circunstancias y la historia

social que se han expuesto en el cuerpo de esta resolution, que hacen al peticionario

acreedor 'de la misma, una parte de la opinion publica, atizada por los recelos y las

suspicacias, podria levantarse indignada contra un sistema de probacion que permite

atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y

la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente

diferentes, en menoscabo 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 resolution denying probation and a notice of intention to file a motion for

reconsideration. An alternative motion for reconsideration or new trial was filed by

counsel on July 13, 1937. This was supplemented by an additional motion for

reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing

on July 31, 1937, but said hearing was postponed at the petition of counsel for the

respondent Mariano Cu Unjieng because a motion for leave to intervene in the case

as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the

trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion

subsequently filed a petition for leave to withdraw his appearance as amici curiae on the

ground that the motion for leave to intervene as amid curiae was circulated at a banquet

given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he

signed the same "without mature deliberation and purely as a matter of courtesy to the

person who invited me (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 Mariano Cu 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 amici curiae aforementioned, asking that a date be set for the hearing of the

same and that, at all events, said motion should be denied with respect to certain

attorneys signing the same who were members of the legal staff of the several counsel

for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued

an order requiring all parties including the movants for intervention as amici curiae to

appear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the

City of Manila moved for the hearing of his motion for execution of judgment in

preference to the motion for leave to intervene as amici curiae but, upon objection of

counsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both

motions. The respondent judge thereupon set the hearing of the motion for execution on

August 21, 1937, but proceeded to consider the motion for leave to intervene asamici

curiae as in order. Evidence as to the circumstances under which said motion for leave to

intervene as amici curiae was 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 what they alleged was an interminable

proceeding in the Court of First Instance of Manila which fostered "the campaign of the

defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this

Honorable Court on him, exposing the courts to criticism and ridicule because of the

apparent inability of the judicial machinery to make effective a final judgment of this

court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing bef6re the trial court was accordingly suspended upon the

issuance of a temporary restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and

prohibition, herein petitioners 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 under probation for the following reasons:

(1) Under section 11 of Act No. 4221, the said Act of the Philippine Legislature is made to

apply only to the provinces of the Philippines; it nowhere states that it is to be made

applicable to chartered cities 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 of Manila 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 in which 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 be applicable to it because it has not provided for the salary of a probation officer as

required by section 11 thereof; it being immaterial that there is an Insular Probation

Office willing to act for the City of Manila, said Probation Office provided for in section 10

of Act No. 4221 being different and distinct 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 for probation 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 commit Mariano Cu Unjieng to prison after he had

promulgated his resolution of June 28, 1937, denying Mariano 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

granting or denying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on

June 28, 1937, it became final and executory at the moment of its rendition.

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

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

or change the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of

the crime for which he was convicted by final judgment of this court, which finding is not

only presumptuous but without foundation in fact and in law, and is furthermore in

contempt of this court and a violation of the respondent's oath of office as ad

interimjudge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which

became/imperative when he issued his order of June 28, 1937, denying the application

for probation, to commit his co-respondent to jail.

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

ordinary course of law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and

Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine

Legislature providing for a system of probation for persons eighteen years of age or over

who are convicted of crime, is unconstitutional because it is violative of section 1,

subsection (1), Article III, of, the Constitution of the Philippines guaranteeing equal

protection of the laws because it confers upon the provincial board of each province 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 several provinces of the legislative power lodged by the Jones Law (section

8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the National

Assembly; and for the further reason that it gives the 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 Courts of First Instance of the different provinces without

uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of

the City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands,

concurs for the first time with the issues raised by the other petitioner regarding the

constitutionality of Act No. 4221, and in the oral argument held on Qctober 6, 1937,

further elaborated on the theory that probation is a form of reprieve and therefore Act

No. 4221 is an encroachment oh the exclusive power of the Chief Executive to grant

pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in

which he contended that Act No. 4221 not only encroaches upon the pardoning power of

the executive, but also constitutes an unwarranted delegation of legislative power and a

denial of the equal protection of the laws. On Octooer 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 other petitioner, the Hongkong and

Shanghai Banking Corporation, one sustaining the power of the state to impugn the

validity of its own laws and the other contending that Act No. 4221 constitutes an

unwarranted delegation of legislative power, were presented. Another joint

memorandum was filed by the same; persons on the same day, October 9, 1937, alleging

that Act No. 4221 is unconstitutional because it denies the equal protection of the laws

and constitutes an unlawfull delegation of legislative power and, further, that the whole

Act is void; that the Commonwealth is not estopped from questioning the validity of its

laws; that the private prosecution may intervene in probation proceedings and may

attack the probation law as unconstitutional; and that this court may pass upon the

constitutional question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument

and memorandums, 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 the writ of certiorari or of prohibition.

(2) 'That the aforesaid petition is premature because the remedy sought by the

petitioners is the very same remedy prayed for by them before the trial court and was

still pending resolution before 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

judgment before the trial court, said trial court has acquired exclusive jurisdiction to

resolve the same under the theory that its resolution denying probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of

First Instance to decide the question as to whether or not execution will lie, this court

nevertheless cannot exercise said jurisdiction while the Court of First Instance has

assumed jurisdiction over the same upon motion of herein petitioners themselves.

(5) that the procedure followed by the herein petitioners in seeking to deprive the trial

court of "its jurisdiction over the case and elevate the proceedings to this court, should

not be tolerated because it impairs the authority and dignity of the trial court which

court while sitting in 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 and pending resolution by the trial court, the present action would not lie

because the resolution of the trial court denying probation is appealable; for although

the Probation Law does not specifically provide that an applicant for probation may

appeal from a resolution of the Court of First 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

Cu Unjieng being appealable, the same had not yet become final and executory for the

reason that the said respondent had filed an alternative motion for reconsideration and

new trial within the requisite period of fifteen days, which motion the trial court was not

able to resolve in view of the restraining order improvidently and erroneously issued by

this court.

(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of

the trial court denying probation is not final and unappealable when he presented his

answer to the motion 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 not

appealable, it is incumbent upon the accused to file an action for the issuance of the writ

of certiorari with mandamus, it appearing that the trial court, although it believed that

the accused was entitled to probation, nevertheless denied probation for fear of criticism

because the accused is a rich man; and that, before a petition for certiorari grounded on

an irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon the

petitioner to file a motion for reconsideration specifying the error committed so that the

trial court could have an opportunity to correct or cure the same.

(10) That on the hypothesis that the resolution of the trial court is not appealable, the

trial court retains its 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 be exercised either motu proprio or upon petition of the

proper party, the petition in the latter case taking the form of a motion for

reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as

respondents allege, said court cannot order execution of the same while it is on appeal,

for then the appeal would not be availing because the doors of. probation would be

closed from the moment the accused 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 is constitutional because, contrary to the allegations of the petitioners,

it does not constitute an undue delegation of legislative power, does not infringe the

equal protection clause of the Constitution, and does not encroach upon the pardoning

power of the Executive. In. an additional memorandum filed on the same date, counsel

for the respondents reiterate the view that section 11 of Act No. 4221 is free from

constitutional objections and contend, in addition, 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 the Act; that the validity of the Act cannot be attacked for the first time before this

court; that prohibition is unavailable; and that, in any event, section 11 of Act No. 4221 is

separable from the rest of the Act. The last memorandum for the respondent Mariano Cu

Unijeng was denied for having been filed out of time but was admitted by resolution of

this court and filed anew on November 5, 1937. This memorandum elaborates on some

of the points raised by the 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 the court below, in passing upon the merits of the application of the

respondent Mariano Cu Unjieng and in denying the said application assumed the task not

only of considering the merits of the application, but of passing upon the culpability of

the applicant, notwithstanding the final pronouncement of guilt by this court. (G. R. No.

41200.) Probation implies guilt by final judgment. While a probation court hearing a

probation case may look into the circumstances attending the commission of the offense,

this does not authorize it to reverse the findings and conclusions of this court, either

directly or indirectly, especially where from its own admission reliance was merely had

on the printed briefs, averments, and pleadings of the parties. As already observed by

this court in Shioji vs. Harvey ([1922], 43 Phil., 33a, 337), and reiterated in subsequent

cases, "if each and every Court of First Instance could enjoy the privilege of overruling

decisions of the Supreme Court, there would be no end to litigation, and judicial chaos

would result." A becoming modesty of inferior courts demands conscious realization of

the position that they occupy in the interrelation and operation of the integrated 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 the affirmative, whether or not said Act is constitutional. Consideration of these issues

will involve a discussion of certain 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 that question is properly raised and

presented in appropriate cases and is necessary to a determination of the case; i. e., the

issue of constitutionality mu3t 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 ordinary course of law even if available, are not

plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922], 42 Phil., 818), this

court held that the question of the constitutionality of a statute may be raised by the

petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the

Philippine Islands vs. Springer ([1927J, 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 the name of the Government of the Philippines. It has also been held

that the constitutionality of a statute may be questioned in habeas corpus proceedings

(12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are

authorities to the contrary; on an application for injunction to restrain action under the

challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234) ; and even

on an application for preliminary injunction where the determination of the

constitutional question is necessary to a decision of the case. (12 C. J., p. 783.) The same

may be said as regards prohibition and certiorari. (Yu Cong Eng vs. Trinidad [1925], 47

Phil., 385; [1926], 271 U. 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 certiorari and prohibition. The constitutionality of Act No. 2972, popularly known as

the Chinese Bookkeeping Law, was there challenged by the petitioners, and the

constitutional issue was met squarely by the respondents in a demurrer. A point was

raised "relating to the propriety of the constitutional question being decided in original

proceedings in prohibition." This court decided to take up the constitutional question

and, with two justices dissenting, held that Act No. 2972 was constitutional. The case was

elevated on writ of certiorari to the Supreme Court of the United States which reversed

the 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 is granted concurrent jurisdiction in prohibition with courts of first

instance over inferior tribunals or persons, and original jurisdiction over courts of first

instance, when such courts are exercising functions without or in excess of their

jurisdiction. It has been held by that court that the question of the validity of a criminal

statute' must usually be raised by a defendant in the trial court and be carried regularly

in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Eosario, 26

Phil., 192.) But in this case where a new act seriously affected numerous persons and

extensive property rights, and was likely to cause a multiplicity of actions, the Supreme

Court exercised its discretion to bring the issue of the act's validity promptly before it

and decide it in the interest of the orderly administration of justice. The court relied by

analogy upon the cases of Ex parte Young (209 U. S., 123; 52Law. ed., 714; 13 L. R. A. [N.

S.], 932; 28 Sup. Ct. Rep., 441; 14 Ann. Cas., 764; Traux vs. Raidh, 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 raised by demurrer

to the petition, this is now disclaimed on behalf of the respondents, and both parties ask

a decision on the merits. In view of broad powers in prohibition granted to that court

under the Island Code, we acquiesce in the desire of the parties."

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior

jurisdiction and directed to an inferior court, for the purpose of, preventing the inferior

tribunal from usurping a jurisdiction with which it is not legally vested.) (High,

Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in

the cases, is that the Writ of prohibition will not lie where the inferior court has

jurisdiction independent of the statute the constitutionality of which is questioned,

because in such cases the inferior court having jurisdiction may itself determine the

constitutionality of the statute, and its decision may be subject to review, and

consequently the complainant in such cases ordinarily has adequate remedy by appeal

without resort to the writ of prohibition. But where 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 parte Roundtree [1874], 51

Ala., 42; In reMacfarland, 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. EL, 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec, 669.)

Courts of First Instance sitting in probation proceedings derive their jurisdiction solely

from Act No. 4221 which prescribes in detailed manner the procedure for granting

probation to accused persons after their conviction has become final and before they

have served their sentence. It is true that at common law the authority of the courts to

suspend temporarily the execution of a sentence is recognized and, according to a

number of state courts, 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. Forsythvs. Court of Sessions [1894], 141 N[. Y., 288; Weber vs. State [1898], 58 Ohio

St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law.

ed., 129; L. R. A., 1917E, 1178; 37 Sup. 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 as to

inherent judicial power saying, through Chief Justice White:

"Indisputably under our constitutional system the right to try offenses against the

criminal laws and upon conviction to impose the punishment provided by law is judicial,

and it is equally to be conceded that, in exerting the powers vested in them on such

subject, courts inherently possess ample right to exercise reasonable, that is, judicial,

discretion to enable them to wisely exert their authority. But these concessions afford no

ground for the contention as to power here made, since it must rest upon the proposition

that the power to enforce begets inherently a discretion to permanently refuse to do so.

And the effect of the proposition urged upon the distribution of powers made by the

Constitution will become apparent when it is observed that indisputable also is it that

the authority to define and fix the punishment for crime is legislative and 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 right to relieve from the punishment, fixed by law and

ascertained according' to the methods by it provided belongs to the executive

department."

Justice Carson, in his illuminating concurring opinion in the case of Director of

Prisons vs. Judge of First Instance 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 are agreed", he

said, "that in the absence of statutory authority, it does not lie within the power of the

courts to grant .such suspensions." (at p. 278.) Both petitioners and respondents are

correct, therefore, when they argue that a Court of First Instance sitting in probation

proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is

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 prohibition where 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 the case at

bar, it is unquestionable that the constitutional issue has been squarely presented not

only before this court by 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 private prosecutor, 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 Mc Glue vs. Essex County ([1916], 225 Mass., 59; 113 N. E.,

742, 743), as authority for the proposition that a court will not consider any attack made

on the constitutionality of a statute by one who has no interest in defeating it because his

rights are not affected by its operation. The respondent judge further stated that it may,

not motu proprio take up the constitutional question and, agreeing with Cooley that "the

power to declare a legislative enactment void is one which the judge, conscious of the

fallibility of the human judgment, will shrink from exercising in any case where he can

conscientiously and with due regard to duty and official oath decline the responsibility"

(Constitutional Limitations, 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 solely because it was

not raised by a proper party. Respondents herein reiterate this view. The argument is

advanced that the private prosecution has no personality to appear in the hearing of the

application for probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of

the Court of First Instance of Manila, and hence the issue of constitutionality was not

properly raised in the lower court. Although, as a general rule, only those who are parties

to a suit may question the constitutionality of a statute involved in a judicial decision, it

has been held that since the decree pronounced by a court without jurisdiction is void,

where the jurisdiction of the court depends on the validity of the statute in question, the

issue of constitutionality will be considered on its being brought to the attention of the

court by persons interested in the effect to be given the statute. (12 C J., sec. 184, p. 766.)

And, even if we were to concede that the issue was not properly raised in the court below

by the proper party, it does not follow that the issue may not be here raised in an original

action of certiorari and prohibition. It is true that, as a general rule, the question 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 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 rule

admits of exceptions. Courts, in the exercise of sound discretion, may determine the time

when a question 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 be raised for the first time at

any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even

in civil cases, it has been held that it is the duty of a court to pass on the constitutional

question, though raised for the 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. 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 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 these

proceedings, we turn again and point with emphasis to the case of Yu Cong

Eng vs. Trinidad,supra. And on the hypothesis that the Hongkong & Shanghai Banking

Corporation, represented by the private prosecution, is not the proper party to raise the

constitutional question 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

personal and substantial interest in the case such that he has sustained, or will sustain,

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 set aside. Of greater import than

the damage caused by the illegal expenditure of public funds is the mortal wound

inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the

well-settled rule that the state can challenge the validity of its own laws. 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 instituted

in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([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 a mining corporation, alleging that the statute under which the

respondents base their right was unconstitutional because it impaired the obligation of

contracts. The capacity of the chief law officer of the state to question the

constitutionality 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 upon their government, a statute enacted by the people of Michigan is an

adequate answer. The last proposition is true, but, if the statute relied on in justification

is unconstitutional, it is a statute only in form, and lacks the force of law, and is of no

more saving effect to justify action under it than if it had never been enacted. The

constitution is the supreme law, and to its behests the courts, the legislature, and the

people must bow. * * * The legislature and the respondents are not the only parties in

interest upon such constitutional questions. As was remarked by Mr. Justice Story, in

speaking of an acquiescence by a party affected by an unconstitutional act of the

legislature: 'The people have a deep and vested interest in maintaining all the

constitutional limitations upon the 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 by the Attorney-General of Kansas to test the constitutionality of a statute of

the state. In disposing of the question whether 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 always interested 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 need

not, as an individual' plaintiff must, show grounds of fearing more specific injury.

(State vs. Kansas City, 60 Kan., 518 [57 Pac, 113]'). (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 county attorney, may exercise his best 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. K. A., 662), by mandamus to compel

obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac, 846), or by injunction 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. By. 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], 221 N. Y., 295; 116 N. 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 Louisiana said:

"It is contended by counsel for Herbert Watkins that a district attorney, being charged

with the duty of enforcing the laws, has no right to plead that a law is unconstitutional. In

support of the argument, three decisions 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 La. Ann., 156; 6 So., 592) ; and

State ex rel. Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. K. A.,

512). These decisions do not forbid a district attorney to plead that a statute is

unconstitutional if he finds it in conflict with one which it is his duty to enforce. In

State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was that the judge should not,

merely because he believed a certain statute to be unconstitutional, forbid the district

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 tendered for 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 the duty

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 be unconstitutional. 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 them by 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 the Constitution of the state. If, in the performance of his duty he finds two

statutes in conflict with each other, or one which repeals another, and if, in his judgment,

one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in

order to do so, he is compelled to submit to the court, by way of a plea, that one of the

statutes is unconstitutional. If it were not so, the power of the Legislature would be free

from constitutional limitations 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 in the present case, nor may it be invoked by the City Fiscal in behalf of the

People of the Philippines, one of the petitioners herein, the principal reasons being that

the validity of the Probation Act cannot be attacked for the first time before this court,

that the City Fiscal is estopped from attacking the validity of the Act and, not being

authorized to enforce laws outside of the City of Manila, cannot challenge the validity of

the Act in its application outside said city. (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 in the past and all

that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the

contrary, has been impliedly regarded by him as constitutional, is no reason for

considering the People of the Philippines estopped from now assailing its validity. For

courts will pass upon a constitutional question only when presented before it in bona

fide cases 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 raised later. The fiscal and all others are

justified in relying upon the statute and treating it as valid until it is held void by the

courts in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221

is necessary to the resolution of the instant .case. For, "* * * while the court will meet the

question with firmness, where its decision is indispensable, it is the part of wisdom, and

a just respect for the legislature, renders it proper, to waive it, if the case in which it

arises, can be decided on other points." (Ex parte Randolph [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 constitutional question 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, 22 Gratt [63 Va.], 458; Union Line Co. vs. Wisconsin R. Commn., 146

Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute, the

validity of which is attacked. (12 C. J., p. 782, citing Central Glass Co. vs. Niagara F. Ins. Co.,

131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N. E., 306). There is no

doubt that the respondent Cu Unjieng draws his privilege to probation solely from Act

No. 4221 now being assailed.

Apart from the foregoing considerations, this court will also take cognizance of the fact

that the Probation Act is a new addition to our statute books and its validity has never

before been passed upon by the courts; that many persons accused and convicted of

crime in the City of Manila have applied for probation; that some of them are already 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 await the decision of this court on the constitutional

question. Considering, therefore, the importance which the instant case has assumed and

to prevent multiplicity of suits, strong reasons of public policy demand that the

constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47

Phil., 385; [1926], 271 U. S., 500; 70 Law. od., 1059. See 6 K. C. L., pp. 77, 78;

People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442, 444; Ann. Cas. 1914C, 616;

Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N. W., 209, 211; 37 L. E. A. [N. S.], 489;

Dimayuga and Pajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng O.

Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the

property and personal rights of nearly twelve thousand merchants are affected by these

proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the

courts, in the interest of the public welfare and for the advancement of public policy, we

have determined to overrule the defense of want of jurisdiction in order that we may

decide the main issue. We have here an extraordinary situation which calls for a

relaxation of the general rule." Our ruling on this point was sustained by the Supreme

Court 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. This court, by clear implication from the provisions of section 2,

subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the

national legislature invalid because in conflict with the fundamental law. It will not shirk

from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to

give effect to the supreme 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 should be resolved in favor of the constitutionality of a statute. An act

of the legislature approved by the executive, is presumed to be within constitutional

limitations. The responsibility of upholding" the Constitution rests not on the courts

alone but on the legislature as well. "The question of the validity of every statute is first

determined by the legislative department of the government itself." (U. S. vs. Ten Yu

[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.

S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by

the sanction of the executive. The members of the Legislature and the Chief Executive

have taken an oath to support the Constitution and it must be presumed that they have

been true to this oath and that in enacting and sanctioning a particular law they, did not

intend to violate the Constitution. The courts cannot but cautiously exercise its power to

overturn the solemn declarations of two of the three grand departments of the

government. (6 R. C. L., p. 101.) Then, there is that peculiar political philosophy which

bids the judiciary to reflect the wisdom 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 a proposition

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 fact that 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 the Probation Act (No, 4221); that this

message resulted in the approval of Bill No. 2417 of the National Assembly repealing the

Probation Act, subject to certain conditions therein mentioned; but that said bill was

vetoed by the President on September 13, 1937, much against his wish, "to have stricken

out from the statute books of the Commonwealth a law * * * unfair and very likely

unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill

referred to, the President exercised his constitutional prerogative. He may express the

reasons which he may deem proper for taking such a step, but his reasons are not

binding upon us in the determination of actual controversies submitted for our

determination. Whether or not the Executive should express or in any manner insinuate

his opinion on a matter encompassed within his broad constitutional power of veto but

which happens to be at the same time pending determination in this court is a question

of propriety for him exclusively to decide or determine. Whatever opinion is expressed

by him under these circumstances, however, cannot sway our judgment one way or

another and prevent us from taking what in our opinion is the proper course of action to

take in a given case. If it 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 to popularity, 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 encroaches upon the pardoning power of the Executive; (2) that it 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 the time of the approval of Act No. 4221, otherwise

known as the Probation Act, vests in the Governor-General of the Philippines

"the exclusive power to grant pardons and reprieves and remit fines and

forfeitures". This power is now vested in the President of the Philippines. (Art.

VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution

differ in some respects. The adjective "exclusive" found in the Jones Law has

been omitted from the Constitution. Under the Jones Law, as at common law,

pardon could be granted any time after the commission of the 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 the United States, to pardon a person

before the facts of the case were fully brought to light. The framers of our

Constitution thought this undesirable and, following most of the state

constitutions, provided that the pardoning power can only be exercised "after

conviction". So, too, under the new Constitution, the pardoning power does not

extend to "cases of impeachment". This is also the rule generally followed in the

United States ( Vide Constitution of the United States, Art. II, sec. 2). The rule in

England is different. There, a royal pardon can not be pleaded in bar of an

impeachment; "but," says Blackstone, "after the impeachment has been

solemnly heard and determined, it is not understood that the king's royal grace

is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307;

15 Law. ed., 421; Com., vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699;

Sterling vs.. Drake [1876], 29 Ohio St., 457; 23 Am. Rep., 762.) The reason for

the distinction is obvious. In England, judgment on impeachment is not

confined to mere "removal from office and disqualification to hold and enjoy

any office of honor, trust, or profit under the Government" (Art. IX, sec. 4,

Constitution of the Philippines) but extends to the whole punishment attached

by law to the offense committed. The House of Lords, on a conviction may, by

its sentence, inflict capital punishment, perpetual banishment, fine or

imprisonment, depending upon the gravity of the offense committed, together

with removal from office and incapacity to hold office.

(Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of

"commutation" and of the power of the executive to impose, in the pardons he

may grant, such conditions, restrictions and limitations as he may deem proper.

Amnesty may be granted 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 the pardoning power has remained essentially the same. The

question is: Has the pardoning power of the Chief Executive 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 exercise of 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 legislative restrictions, nor can like power be given by the legislature to

any other officer or authority. The coordinate departments of government have nothing

to do with the pardoning power, since no person properly belonging to one of the

departments can exercise any powers appertaining to either of the others except in cases

expressly provided for by the constitution." (20 R. C. L., pp. 540, 541, and cases cited.) "*

* * where the pardoning power is conferred on the executive without express or implied

limitations, the grant is exclusive, and the legislature can neither exercise such power

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 ruled in 1916 that an order indefinitely suspending sentence was void. (Ex

parte United States [1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A. 1917E, 1178; 37 Sup.

Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive 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 sentence

absolutely and permanently was vested in the executive branch of the government and

not in the judiciary. But, the right of Congress to establish probation by statute was

conceded. Said the court through its Chief Justice: " * * * and so far as the future is

concerned, that is, the causing of the imposition of penalties as fixed to be subject, by

probation legislation or such other means as the legislative mind may devise, to such

judicial discretion as may be adequate to enable courts to meet by the exercise of an

enlarged but wise discretion the infinite variations which may be presented to them for

judgment, recourse must be had to 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 National Probation Association and others to

agitate for the enactment by Congress of a federal probation law. Such action was finally

taken on March 4, 1925 (chap. 521, 43 Stat. at L. 1259, U. S. C. title 18, see. 724). This was

followed by an appropriation 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 Supreme Court of the United States, through Chief Justice Taft, held that when a

person sentenced to imprisonment by a district court has begun to serve his sentence,

that court has no power under the Probation Act of March 4, 1925 to grant him

probation even though the term at which sentence was imposed had not yet expired. In

this case of Murray, the constitutionality of the Probation Act was not considered but

was assumed. The court traced the history of the Act and, quoted from the report of the

Committee on the Judiciary of the United States House of Representatives (Report No.

1377, 68th Congress, 2d Session) the following statement:

"Prior to the so-called Killitts case, rendered in December, 1916, the district courts

exercised a form of probation either, by suspending sentence or by placing the

defendants under state probation officers or volunteers. 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 to

suspend sentence. In the same opinion the court pointed out the necessity for action by

Congress if the courts 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 Judiciary Committee 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 its treatment 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 adult and 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 the act 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 arose under

the act we have to consider, and to it and the authorities cited therein special reference is

made (Nix vs. 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 was actually enacted in 1925, and that the

constitutionality of the Act has been assumed by the Supreme Court of the United 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 is supported by other authorities. In Ex

parte Bates ([1915], 20 N. M., 542; L. R. A. 1916A, 1285; 151 Pac, 698, the court said: "It

is clearly within the province of the Legislature to denominate and define all classes of

crime, and to prescribe 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 crime is very broad,

and in the exercise of this power the general assembly may confer on trial judges, if it

sees fit, the largest discretion as to the sentence to foe imposed, as to the beginning and

end of the punishment and whether it should 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,

the legislature has demonstrated the desire to vest in the courts—particularly the trial

courts—large discretion in imposing the penalties which the law prescribes in particular

cases. It is believed that justice can best be served by vesting 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 penalty provided by law is clearly excessive, the

courts being allowed in such cases to submit to the Chief Executive, through the

Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal

Code), in cases where both mitigating and aggravating circumstances are attendant in

the commission of a crime and the law provides for a penalty composed of two

indivisible penalties, the courts may allow such circumstances to offset one another in

consideration of their number and importance, and to apply the penalty according to the

result of such compensation. (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 each period, in case the penalty

prescribed by law contains three periods, the extent of the penalty according to the

number and nature of the aggravating and mitigating circumstances and the extent of the

evil produced by the crime. In the imposition of fines, the courts are allowed to fix any

amount within the limits established by law, considering not only the mitigating and

aggravating circumstances, but more particularly the wealth or means of the culprit. (Art.

66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a

discretionary penalty shall be imposed" upon a person under fifteen but over nine years

of age, who has not acted without discernment, but always lower by two degrees at least

than that prescribed by law for the crime which he has committed. Article 69 of the same

Code provides that in case of "incomplete self-defense", i. e., when the crime committed

is not wholly excusable by reason of the lack of some of the conditions required to justify

the same or to exempt from criminal liability in the several cases mentioned in articles

11 and 12 of the Code, "the courts shall impose the penalty in the period which may be

deemed proper, in view of the number and nature of the conditions of exemption present

or lacking." And, in case the commission of what are known as "impossible" crimes, "the

court, having in mind the social danger and the degree of criminality shown by the

offender," shall impose upon him either arresto mayor or a fine 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 from the entire term of imprisonment, except in certain cases expressly

mentioned (art. 29) ; the death penalty is not imposed when the guilty person is more

than seventy years of age, or where upon appeal or revision of the case by the Supreme

Court, all the members thereof are not unanimous in their voting as to the propriety of

the imposition of the death 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 sentence or while

she is pregnant, or upon any person over seventy years of age (art. 83); and when a

convict shall become insane or an imbecile after final sentence has been pronounced, or

while he is serving his sentence, the execution of said sentence shall be suspended with

regard to the personal penalty during the period of such insanity or imbecility (art. 79).

But the desire of the legislature to relax what might result in the undue harshness of the

penal laws is more clearly demonstrated in various other enactments, including the

probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103

and subsequently amended by Act No. 4225, establishing a system of parole (sees. 5 to

10) and granting the courts large discretion in imposing the penalties of the law. Section

1 of the law as amended provides: "Hereafter, in imposing a prison sentence for an

offense punished by the Revised Penal Code, or its amendments, the court shall sentence

the accused to an indeterminate sentence the maximum term of which shall 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 for the offense; and if the offense is punished

by any other law, the court shall sentence the accused to an indeterminate sentence, the

maximum term of which shall not exceed the maximum fixed by said law and the

minimum shall not be less than the minimum term prescribed by the same." Certain

classes of convicts are, by section 2 of the law, excluded from the operation thereof. The

Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203) which was

subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the

amendatory Act have become article 80 of the Revised Penal Code, amended by Act No.

4117 of the Philippine Legislature and recently reamended by Commonwealth Act No.

99, of the National Assembly. Finally came the (Adult) Probation Act now in Question. In

this Act is again manifested the intention of the legislature to "humanize" the penal laws.

It allows, in effect, the modification in particular cases of the penalties prescribed by law

by permitting the suspension of the execution of the judgment, in the discretion ox the

trial court, after due hearing and after investigation of the particular circumstances of

the offense, the criminal record, if any, of the convict, and his social history. The

Legislature has in reality decreed that in certain cases no punishment at all shall be

suffered by the convict as long as the conditions of probation are faithfully observed. If

this be so, then, it cannot be said that the Probation Act conies in conflict with the power

of the Chief Executive to grant pardons and reprieves, because, to use the language of the

Supreme Court of New Mexico, "the element of punishment or the penalty for the

commission of a wrong, while to be declared by the courts as a judicial function under

and within the limits of law as announced by legislative acts, concerns solely the

procedure and conduct of criminal causes, with which the executive can have nothing to

do," (Ex parte Bates, 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 power lodged by the

constitution in the governor of the state and observed that "while the governor alone is

vested with the power to pardon after final sentence has been imposed by the courts, the

power of the courts to impose any penalty which may be from time to time prescribed by

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

unlawuful for the legislature to vest in the courts the power to suspend the operation of a

sentence, by probation or otherwise, as to do 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. Kep.,

846; 62 N. W., 177; 9 Am. Crim. Rep., 7O.; State ex rel. Summer-field vs. Moran [1919], 43

Nev., 150; 182 Pac, 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep.,

227; 19 L. R. A. [N. S.], 1041; 132 Am. St. Rep., 628; 97 Pac, 650; People vs. Barrett [1903],

202 111., 287; 67 N. E., 23; 63 L. R. A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State

[1912], 67 Tex, Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162;  Ex parte Shelor

[1910], 33 Nev., 361; 111 Pac, 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 1902;

69 Am. St. Rep., 175; 30 S. E., 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630;

181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; State vs. Dalton [1903], 109

Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra (Nix vs. James [1925; C C. A., 9th], 7 F. [2d], 590;

Archer vs. Snook [1926; D. C], 10 F. [2d], 567; Riggs. vs..United States [1926; C. C. A. 4th],

14]) [2d], 5; Murphy vs. State [1926], 171 Ark., 62O. 286 3. W., 871; 48 A. L. R.,

1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac, 831; Re Nachnaber [1928], 89 Cal.

App., 530; 265 Pac., 392; Ex parte Be Voe [1931], 114 Cal. App., 730; 300; Pac, 874;

People vs. Patrick [1897], 118 Cal., 332; 50 Pac, 425; Martin vs. People [1917], 69 Colo.,

60; 168 Pac, 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370; 371;

Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 111.,

443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859;

St. Hilarie, Petitioner [1909], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156

Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex

rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac, 525; State vs.Everitt

[1913], 164 N. C, 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel Buckley vs. Drew

[1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl.

424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A, 1285; 151 Pac, 698; People ex

rel. Forsyth vs. Court of Sessions [1894], 141 N. Y., 288; 23 L: R. A., 856; 36 N. E., 386; 15

Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y.

Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245

App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149

N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal

[1918], 108 S. C, 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C, 466; 33 L. R. A. [N. S.],

112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. State [1854], 34 Tenn., 232;

Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913], 70 Tex.,

Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W.,

573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932],

122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24;

Richardson vs. Com. [1921], 131 Va., 802; 109 S. E., 460; State vs. Mallahan [1911], 65

Wash., 287; 118 Pac, 42; State ex rel. Tingstad vs. Starwich [1922], 119 Wash., 561; 206

Pac, 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities holding

that the courts may be legally authorized by the legislature to suspend sentence by their

establishment of a system of probation however characterized. State ex

rel. Tingstad vs.Starwich ([1922], 119 Wash., 561; 206 Pac, 29; 26 A. L. R., 393), deserved

particular mention. In that case, a statute enacted in 1921 which provided for the

suspension of the execution of a sentence until otherwise ordered by the court, and

required that the convicted person be placed under the charge of a parole or peace

officer during the term of such suspension, on such terms as the court may determine,

was held constitutional and as not giving the court a power in violation of the

constitutional provision vesting the pardoning power in the chief executive of the state.

(Vide, also, Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually

distinct and different from each other, both in origin and in nature. In People ex

rel.Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R.

A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said:

"* * * The power to suspend sentence and the power to grant reprieves and pardons, as

understood when the constitution was adopted, are totally distinct and different in their

origin and nature. The former was always a part of the judicial power; the latter was

always a part of the executive power. The suspension of the sentence simply postpones

the judgment of the court temporarily or indefinitely, but the conviction and liability

following it, and all civil disabilities, remain and become operative when judgment is

rendered. A pardon reaches both the punishment prescribed for the offense and the guilt

of the offender. It releases the punishment, and blots out of existence the guilt, so that in

the eye of the law, the offender is as innocent as if he had never committed the offense. It

removes the penalties and disabilities, and restores him to alt his civil rights. It makes

him, as it were, a new man, and gives him a new credit and capacity. (Ex parte Garland,

71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed.,

519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)

"The framers of the federal and state constitutions were perfectly familiar with the

principles governing the power to grant pardons, and it was conferred by these

instruments upon the executive with full knowledge of the law upon the subject, and the

words of the constitution were used to express the authority formerly exercised by the

English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How.,

307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any part of

the judicial functions to suspend sentence, and it was never intended that the authority

to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of

that power in regard to its own judgments, that criminal courts had 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

judicial department. We therefore conclude that a statute which, in terms, authorizes -

courts of criminal jurisdiction to suspend sentence in certain cases after conviction,—a

power inherent in such courts at common law, which was understood when the

constitution was adopted to be an ordinary judicial function, and which, ever since its

adoption, has been exercised by the courts, is a valid exercise of legislative power under

the constitution. It does not encroach, in any just sense, upon the powers of the

executive, as they have been understood and practiced from the earliest times." (Quoted

with approval in Director 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 completely exonerated. He is not exempt from the entire punishment which

the law inflicts. Under the Probation Act, the probationer's case is not terminated by the

mere fact that he is placed on probation. Section 4 of the Act provides that the probation

may be definitely terminated and the probationer finally discharged from supervision

only after the period of probation shall have been terminated and the probation officer

shall have submitted a report, and the court shall 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 be committed 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 is really a new mode of punishment, to be applied by the judge in a proper

case, in substitution of the imprisonment and fine prescribed by the criminal laws. For

this reason its application is as purely a judicial act as any other sentence carrying out

the law deemed applicable to the offense. The executive act of pardon, on the contrary, is

against the criminal law, which binds and directs the judges, or rather is outside of and

above it. There is thus no conflict with the pardoning power, and no possible

unconstitutionality of the Probation Act for 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 moat strongly by the petitioners as authority in support of

their contention that the power to grant pardons and reprieves, having been vested

exclusively upon the Chief Executive by the Jones Law, may not be conferred by the

legislature upon the courts by means of a probation law authorizing the indefinite

judicial suspension of sentence. We have examined that case 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 distinguished between suspension of sentence on the one hand, and

reprieve and commutation of sentence on the other. Said the court, through Harper, J.:

"That the power to suspend the sentence does not conflict with the power of the

Governor to grant reprieves 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 day certain, whereas a suspension is for an

indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40

N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be held

in conflict with the power confiding in the Governor to grant commutations of

punishment, for a commutation is but to change the punishment assessed to a less

punishment."

In State ex rel. Bottomly 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 in sections 12078-12086, Revised Codes of

1921. The court held the law valid as not impinging upon the pardoning power of the

executive. In a unanimous decision penned by Justice Holloway, the court said:

"* * * the terms 'pardon,' 'commutation,' and 'respite' each had a wellunderstood

meaning at the time our Constitution was adopted, and no one of them was intended to

comprehend the suspension of the execution of a 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 is bestowed

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 of the offense (Cook vs. Middlesex County, 26 N. J.

Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). 'Commutation' is a remission of

a part of the punishment; a substitution of a less penalty for the one originally imposed

(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 a sentence for an

interval of time (4 Blackstone's Commentaries, 394), a postponement of execution

(Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of executon

(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 has been determined; but the same objections have been urged against

parole statutes which vest the power to parole 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 (130 Tenn., 100;

163 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. The pardoning power, in respect to those serving their probationary

sentences, remains as full and complete as if the Probation Law had never been enacted.

The President may yet pardon the probationer and thus place it beyond the power 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 for that reason void, does section 11 thereof constitute, as

contended, an undue delegation of legislative power?

Under our 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 the government derives its authority from the

Constitution which, in turn, is the highest expression of popular will. Each has 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 unicameral National Assembly by the Constitution (Art.

VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the National

Assembly may not escape its duties and responsibilities by delegating that power to any

other body or authority. Any attempt to abdicate the power is unconstitutional and void,

on the principle that potestas delegata non delegare potest. This principle is said to have

originated with the glossators, was introduced into English law through a misreading of

Bracton, there developed as a principle of agency, was established by Lord Coke in the

English public law in decisions forbidding the delegation of judicial power, and found its

way into America as an enlightened principle of free government. It has since become an

accepted corollary of the principle of separation of powers. (5 Encyc. of the Social

Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative

neither must nor can transfer the power of making laws to anybody else, or place it

anywhere but where the people have." (Locke on Civil Government sec. 142.) Judge

Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled

maxims in constitutional law is, that the power conferred upon the legislature to make

laws cannot be delegated by that department to any other body or authority. Where the

sovereign power of the state has located the authority, there it must remain; and by the

constitutional agency alone the laws must be made until the Constitution itself is

changed. The power to whose judgment, wisdom, and patriotism this high prerogative

has been intrusted cannot relieve itself of the responsibility by choosing other agencies

upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and

patriotism of any other body for those to which alone the people have seen fit to confide

this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted

with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on

the ethical principle that such a delegated power constitutes not only a right but a duty

to be performed by the delegate by the instrumentality of his own judgment acting

immediately upon the matter of legislation and not through the intervening mind of

another. (U. S. vs. Barrias, supra, at p. 330.)

The rule, however, which forbids the delegation of legislative power is not absolute and

inflexible. It admits of exceptions. An exception sanctioned by immemorial practice

permits the central legislative body to delegate legislative powers to local authorities.

(Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660 U. S. vs. Salaveria [1918], 39

Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct.

Rep., 256; State vs. Noyes [1855], 30.N. H., 279.) "It is a cardinal principle of our system

of government, that local affairs shall be managed by local authorities, and general affairs

by the central authority; and hence while the rule is also fundamental that the power, to

make laws cannot be delegated, the creation of municipalities exercising local self

government has never been held to trench upon that rule. Such legislation is not

regarded as a transfer of general legislative power, but rather as the grant of the

authority to prescribe local regulations, according to immemorial practice, subject of

course to the interposition of the superior in cases of necessity."

(Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is empowered

to delegate legislative power to such agencies in the territories of the United States as it

may select. A territory stands in the same relation to Congress as a municipality or city to

the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep.,

742.; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U. S., 138; 24

Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the

delegation of legislative power to the people at large. Some authorities maintain that this

may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913],

207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether

or not a state has ceased to be republican in form because of its adoption of the initiative

and referendum has been held not to be a judicial but a political question (Pacific States

Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law, ed., 377; 32 Sup. Ct. Rep., 224),

and as the constitutionality of such laws has been looked upon with favor by certain

progressive courts, the sting of the decisions of the more conservative courts has been

pretty well drawn. (Opinions of the Justices [1894], 16O.Mass., 586; 36 N. E., 488; 23 L. R.

A., US; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac, 379; 112 Pac, 402; 37 L. R. A.

[N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative

power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI

of the Constitution of the Philippines provides that "The National Assembly may by law

authorize the President, subject to such limitations and restrictions as it may impose, to

fix within specified limits, tariff rates, import or export quotas, and tonnage and

wharfage dues." And section 16 of the same article of the Constitution provides that "In

times of war or other national emergency, the National Assembly may by law authorize

the President, for a limited period and subject to such restrictions as it may prescribe, to

promulgate rules and regulations to carry out a declared national policy." It is beyond the

scope of this decision to determine whether or not, in the absence of the foregoing

constitutional provisions, the President could be authorized to exercise the powers

thereby vested in him. Upon the other hand, whatever doubt may have existed has been

removed by the Constitution itself.

The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 is section 11 which reads as follows:

"This Act shall apply only in those provinces in which the respective provincial boards

have provided for the salary of a, probation officer at rates not lower than those now

provided for provincial fiscals. Said probation officers shall be appointed by the

Secretary of Justice and shall be subject to the direction of the Probation Office."

(Underscoring ours.)

In testing whether a statute constitutes an undue delegation of legislative power or not,

it is usual to inquire •whether the statute was complete in all its terms and provisions

when it left the hands of the legislature so that nothing was left to the judgment of any

other appointee or delegate of the legislature. (6 R. C. L., p, 165.) In United States vs.Ang

Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act

of the legislature void in so far as it undertook to authorize the Governor-General, in his

discretion, to issue a proclamation fixing the price of rice and to make the sale of it in

violation of the proclamation a crime. (See and cf. Compania General de

Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general

rule, however, is limited by another rule that to a certain extent matters of detail may be

left to be filled in by rules and regulations to be adopted or promulgated by executive

officers and administrative boards, (6 R. C. L., pp. 177179.)

For the purposes of the Probation Act, the provincial boards may be regarded as

administrative bodies endowed with power to determine when the Act should take effect

in their respective provinces. They are the agents or delegates of the legislature in this

respect. The rules governing delegation of legislative power to administrative and

executive officers are applicable or are at least indicative of the rule which should be

here adopted. An examination of a variety of cases on delegation of power to

administrative bodies will show that the ratio decidendi is at variance but, it can be

broadly asserted that the rationale revolves around the presence or absence of a

standard or rule of action—or the sufficiency thereof—in the statute, to aid the delegate

in exercising the granted discretion. In some cases, it is held that the standard is

sufficient; in others that it is insufficient; and in still others that it is entirely lacking. As a

rule, an act of the legislature is incomplete and hence, invalid if it does not lay down any

rule or definite standard by which the administrative officer or board may be guided in

the exercise of the discretionary powers delegated to it. (See Schecter vs. United States

[1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A. L. R., 947; People  ex

rel. Rice vs. Wilson Oil Co. [1936], 364 111., 406; 4 N. E. [2d], 847; 107 A. L. R., 1500 and

cases cited. See also R. C. L., title "Constitutional Law", sec. 174.) In the case at bar, what

rules are to guide the provincial boards in the exercise of their discretionary power to

determine whether or not the Probation Act shall apply in their respective provinces?

What standards are fixed by the Act? We do not find any and none has been pointed to us

by the respondents. The probation Act does not, by the force of any of its provisions, fix

and impose upon the provincial boards any standard or .guide in the exercise of their

discretionary power. What is granted, if we may use the language of Justice Cardozo in

the recent case of Schecter, supra, is a "roving commission" which enables the provincial

boards to exercise arbitrary discretion. By section 11 of the Act, the legislature does

seemingly on its own authority extend the benefits of the Probation Act to the provinces

but in reality leaves the entire matter for the various provincial boards to determine. In

other words, the provincial boards of the various provinces are to determine for

themselves, whether the Probation Law shall apply to their provinces or not at all. The

applicability and application of the Probation Act are entirely placed in the hands of the

provincial boards. If a provincial board does not wish to have the Act applied in its

province, all that it has to do is to decline to appropriate the needed amount for the

salary of a probation officer. The plain language of the Act is not susceptible of any other

interpretation. This, to our minds, is a virtual surrender of legislative power to the

provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of power to make

the law, which necessarily involves a discretion as to what it shall be, and conferring an

authority or discretion as to its execution, to be exercised under and in pursuance of the

law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati,

W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on

Statutory Construction, sec. 68.) To the same effect are decisions of this court in

Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil, 547) ;

Rubi vs. Provincial Board of Mindoro ([1919], 39 Phil., 660), and Cruz vs. Youngberg

([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of a law

conferring upon the Governor-General authority to adjust provincial and municipal

boundaries. In the second case, this court held it lawful for the legislature to direct non-

Christian inhabitants to take up their habitation on unoccupied lands to be selected by

the provincial governor and approved by the provincial board. In the third case, it was

held proper for the legislature to vest in the Governor-General authority to suspend or

not, at his discretion, the prohibition of the importation of foreign cattle, such prohibition

to be raised "if the conditions of the country make this advisable or if disease among

foreign cattle has ceased to be a menace to the agriculture and livestock of the lands."

It should be observed that in the case at bar we are not concerned with the simple

transference of details of execution or the promulgation by executive or administrative

officials of rules and regulations to carry into effect the provisions of a law. If We were,

recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil.,

327; U. S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil.,

394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil.,

218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)

It is contended, however, that a legislative act may be made to the effect as law after it

leaves the hands of the legislature. It is true that laws may be made effective on certain

contingencies, as by proclamation of the executive or the adoption by the people of a

particular community (6 R. C. L., 116. 17O.172; Cooley, Constitutional Limitations, 8th

ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed;., 253), the

Supreme Court of the United States ruled that the legislature may delegate a power not

legislative which it may itself rightfully exercise. (Vide, also, Dowling vs. Lancashire Ins.

Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is

such a power which may be delegated. There is nothing essentially legislative in

ascertaining the existence of facts or conditions as the basis of the taking into effect of a

law. That is a mental process common to all branches of the government.

(Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis.,

616; 97 N. W., 1033; 33 L. R. A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N. W., 210;

Field vs. Clark [1892], 143 U. S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding

the apparent tendency, however, to relax the rule prohibiting delegation of legislative

authority on account of the complexity arising from social and economic forces at work

in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The

Mother of Parliaments", Foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,

"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152),

the orthodox pronouncement of Judge Cooley in his work en Constitutional Limitations

finds restatement in Prof. Willoughby's treatise on the Constitution of the United States

in the following language—speaking of declaration of legislative power to administrative

agencies: "The principle which permits the legislature to provide that the administrative

agent may determine when the circumstances are such as require the application of a

law is defended upon the ground that at the time this authority is granted, the rule of

public policy, which is the essence of the legislative act, is determined by the legislature.

In other words, the legislature, as it is its duty to do, determines that, under given

circumstances, certain executive or administrative action is to be taken, and that, under

other circumstances, different or no action at all is to be taken. What is thus left to the

administrative official is not the legislative determination of what public policy demands,

but simply the ascertainment of what the facts of the case require to be done according

to the terms of the law by which he is governed." (Willoughby on the Constitution of the

United States, 2nd ed., Vol. Ill, p. 1637.) In Miller vs. Mayer, etc., of New York ([1883], 109

U. S., 385; 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act

as a declaration of legislative will must, of course, come from Congress, but the

ascertainment of the contingency upon which the Act shall take effect may be left to such

agencies as it may designate." (See, also, 12 G. J., p. 864; State vs. Parker [1854], 26 Vt.,

357; Blanding vs. Burr [1859], 13 Cal., 343, 358.) The legislature, then, may provide that a

law shall take effect upon the happening of future specified contingencies leaving to

some other person or body the power to determine when the specified contingency has

arisen. But, in the case at bar, the legislature has not made the operation of the Probation

Act contingent upon specified facts or conditions to be ascertained by the provincial

board. It leaves, as we have already said, the entire operation or non-operation of the law

upon the provincial boards. The discretion vested is arbitrary because it is absolute and

unlimited. A provincial board need not investigate conditions or find any fact, or await

the happening: of any specified contingency. It is bound by no rule,— limited by no

principle of expediency announced by the legislature. It may take into consideration

certain facts or conditions; and, again, it may not. It may have any purpose or no purpose

at all. It need not give any reason or have any reason whatsoever for refusing or failing to

appropriate any funds for the salary of a probation officer. This is a matter which rests

entirely at its pleasure. The fact that at some future time—we cannot say when—the

provincial boards may appropriate funds for the salaries of probation officers and thus

put the law into operation in the various provinces will not save the statute. The time of

its taking into effect, we reiterate, would yet be based solely upon the will of the

provincial boards and not upon the happening of a certain specified contingency, or upon

the ascertainment of certain facts or conditions by a person or body other than the

legislature itself.

The various provincial boards are, in practical effect, endowed with the power of

suspending the operation of the Probation Law in their respective provinces. In some

jurisdictions, constitutions provide that laws may be suspended only by the legislature

or by its authority. Thus, section 28, article I of the Constitution of Texas provides that

"No power of suspending laws in this state shall be exercised except by the legislature";

and section 26, article I of the Constitution of Indiana provides "That the operation of the

laws shall never be suspended, except by authority of the General Assembly." Yet, even

provisions of this sort do not confer absolute power of suspension upon the legislature.

While it may be undoubted that the legislature may suspend a law, or the execution or

operation of a law, a law may not be suspended as to certain individuals only, leaving the

law to be enjoyed by others. The suspension must be general, and cannot be made for

individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6

Am. Dec., 174, 177, 178), it was said:

"By the twentieth article of the declaration of rights in the constitution of this

commonwealth, it is declared that the power of suspending the laws, or the execution of

the laws, ought never to be exercised but by the legislature, or by authority derived from

it, to be exercised in such particular cases only as the legislature shall expressly provide

for. Many of the articles in that declaration of rights were adopted from the Magna

Charta of England, and from the bill of rights passed in the reign of William and Mary.

The bill of rights contains an enumeration of the oppressive acts of James II, tending to

subvert and extirpate the protestant religion, and the laws and liberties of the kingdom;

and the first of them is the assuming and exercising a power of dispensing with and

suspending the laws, and the execution of the laws without consent of parliament. The

first article in the claim or declaration of rights contained in the statute is, that the

exercise of such power, by regal authority without consent of parliament, is illegal. In the

tenth section of the same statute it is further declared and enacted, that 'No dispensation

by non obstanteof or to any statute, or any part thereof, should be allowed; but the same

should be held void and of no effect, except a dispensation be allowed of in such statute.'

There is an implied reservation of authority in the parliament to exercise the power here

mentioned; because, according to the theory of the English Constitution, 'that absolute

despotic power, which must in all governments preside somewhere,' is intrusted to the

parliament: 1 Bl. Com., 160.

"The principles of our government are widely different in this particular. Here the

sovereign and absolute power resides in the people; and the legislature can only exercise

what is delegated to them according to the constitution. It is obvious that the exercise of

the power in question would be equally oppressive to the subject, and subversive of his

right to protection, 'according to standing laws,' whether exercised by one man or by a

number of men. It cannot be supposed that the people when adopting this general

principle from the English bill of rights and inserting it in our constitution, intended to

bestow by implication on the general court one of the most odious and oppressive

prerogatives of the ancient kings of England, it is manifestly contrary to the first

principles of civil liberty and natural justice, and to the spirit of our constitution and

laws, that any one citizen should enjoy privileges and advantages which are denied to all

others under like circumstances; or that any one should be subject to losses, damages,

suits, or actions from which all others under like circumstances are exempted."

To illustrate the principle: A section of. a statute relative to dogs made the owner of any

dog liable to the owner of domestic animals wounded by it for the damages without

proving a knowledge of its vicious disposition. By a provision of the act, power was given

to the board of supervisors to determine whether or not during the current year their

county should be governed by the provisions of the act of which that section constituted

a part. It was held that the legislature could not confer that power. The court observed

that it could no more confer such a power than to authorize the board of supervisors of a

county to abolish in such county the days of grace on commercial paper, or to Suspend

the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute

in Missouri was held void for the same reason in State vs. Field ([1853], 17 Mo., 529; 59

Am. Dec, 275.) In that case a general statute formulating a road system contained a

provision that "if the county court of any county' should be of opinion that the provisions

of the act should not be enforced, they might, in their discretion, suspend the operation

of the same for any specified length of time, and thereupon the act should become

inoperative in such county for the period specified in such order; and thereupon order

the roads to be opened and kept in good repair, under the laws theretofore in force." Said

the court: "* * * this act, by its own provisions, repeals the inconsistent provisions of a

former act, and yet it, is left to the county court to say which act shall be in force in their

county. The act does not submit the question to the county court as an original question,

to be decided by that tribunal, whether the act shall commence its operation within the

county; but it became by its own terms a law in every county not excepted by name in

the act. It did not, then, require the county court to do any act in order to give it effect.

But being the law in the county, and having by its provisions superseded and abrogated

the inconsistent provisions of previous laws, the county court is * * * empowered, to

suspend this act and revive the repealed provisions of the former act. When the question

is before the county court for that tribunal to determine which law shall be in force, it is

urged before us that the power then to be exercised by the court is strictly legislative

power, which under our constitution, cannot be delegated to that tribunal or to any other

body of men in the state. In the present case, the question is not presented in the

abstract; for the county court of Saline county, after the act had been for several months

in force in that county, did by order suspend its operation; and during that suspension

the offense was committed which is the subject of the present indictment * * *."

(See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different from those

applicable to other localities and, while recognizing the force of the principle

hereinabove expressed, courts in many jurisdictions have sustained the constitutionality

of the submission of option laws to the vote of the people. (6 R. C. L., p. 171.) But option

laws thus sustained treat of subjects purely local in character, which should receive

different treatment in different localities placed under different circumstances. "They

relate to subjects which, like the retailing of intoxicating drinks, or the running at large of

cattle in the highways, may be differently regarded in different localities, and they are

sustained on what seems to us the impregnable ground, that the subject, though not

embraced within the ordinary powers of municipalities to make by-laws and ordinances,

is nevertheless within the class of public regulations, in respect to which it is proper that

the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p.

148.) So that, while we do not deny the right of local self-government and the propriety

of leaving matters of purely local concern in the hands of local authorities or for the

people of small communities to pass upon, we believe that in matters of general

legislation like that which treats of criminals in general, and as regards the general

subject of probation, discretion may not be vested in a manner so unqualified and

absolute as provided in Act No. 4221. True, the statute does not expressly state that the

provincial boards may suspend the operation of the Probation Act in particular

provinces but, considering that, in being vested with the authority to appropriate or not

the necessary funds for the salaries of probation officers, they thereby are given absolute

discretion to determine whether or not the law should take effect or operate in their

respective provinces, the provincial boards are in reality empowered by the legislature

to suspend the operation of the Probation Act in particular provinces, the Act to be held

in abeyance until the provincial boards should decide otherwise by appropriating the

necessary funds. The validity of a law is not tested by what has been done but by what

may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad

[1922], 43 Phil., 259; 12 C. J., p. 786.)

It is conceded that a great deal of latitude should be granted to the legislature not only in

the expression of what may be termed legislative policy but in the elaboration and

execution thereof. "Without this power, legislation would become oppressive and yet

imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government

lives because of the inexhaustible reservoir of power behind it. It is unquestionable that

the mass of powers of government is vested in the representatives of the people and that

these representatives are no further restrained under our system than by the express

language of the instrument imposing the restraint, or by particular provisions which by

clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Gaz.,

23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in

mind that a constitution is both a grant and a limitation of power and one of these time-

honored limitations is that, subject to certain exceptions, legislative power shall not be

delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful

delegation of legislative authority to the provincial boards and is, for this reason,

unconstitutional and void.

3. It is also contended that the Probation Act violates' the provision of our Bill of

Rights which prohibits the denial to any person of the equal protection of the

laws (Art. Ill, sec. 1, subsec 1, Constitution of the Philippines.)

This basic individual right sheltered by the Constitution is a restraint on all the three

grand departments of our government and on the subordinate instrumentalities and

subdivisions thereof, and on many constitutional powers, like the police power, taxation

and eminent domain. The equal protection of the laws, sententiously observes the

Supreme Court of the United States, "is a pledge of the protection of equal laws." (Yick

Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464;

Fterley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of

course, what may be regarded as a denial of the equal protection of the laws is a question

not always easily determined. No rule that will cover every case can be formulated.

(Connolly vs. Union Sewer Pipe Co. [1902], 184 U. S., 540; 22 Sup. Ct. Rep., 431; 46 Law.

ed., 679.) Class legislation discriminating against some and favoring others is prohibited.

But classification on a reasonable basis, and not made arbitrarily or capriciously, is

permitted. {Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13;

Gulf. C. & S. F. Ry Co. vs; Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep.,

255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to

be reasonable must be based on substantial distinctions which make real differences; it

must be germane to the purposes of the law; it must not be limited to existing conditions

only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911],

147 Wis., 327,353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489;

State vs. Cooley, 56 Minn., 540 530-552; 58 N. W., 150; .Liridsley vs. Natural Carbonic Gas

Co. [1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C,

160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242; U. 3., 375; 37 Sup. Ct. Rep., 144; 61

Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54

Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp.

1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the

unwarranted delegation of legislative power, although perhaps this is not necessarily the

result in every case. Adopting the example given by one of the counsel for the petitioners

in the course of his oral argument, one province may appropriate the necessary fund to

defray the salary of a probation officer, while another province may refuse or fail to do

so. In such a case, the Probation Act would be in operation in the former province but not

in the latter. This means that a person otherwise coming within the purview of the law

would be liable to enjoy the benefits of probation in one province while another person

similarly situated in another province would be denied those same benefits. This is

obnoxious discrimination. Contrariwise, it is also possible for all the provincial boards to

appropriate the necessary funds for the salaries of the probation officers in their

respective provinces, in which case no inequality would result for the obvious reason

that probation would be in operation in each and every province by the affirmative

action of appropriation by all the provincial boards. On that hypothesis, every person

coming within the purview of the Probation Act would be entitled to avail of the benefits

of the Act. Neither will there be any resulting inequality if no province, through its

provincial board, should appropriate any amount for the salary of the probation officer—

which is the situation now—and, also, if we accept the contention that, for the purposes

of the Probation Act, the City of Manila should be considered as a province and that the

municipal board of said city has not made any appropriation for the salary of a probation

officer. These different situations suggested show, indeed, that while inequality may

result in the application of the law and in the conferment of the benefits therein

provided, inequality is not in all cases the necessary result. But whatever may1 be the

case, it is clear that section 11 of the Probatoin Act creates a situation in which

discrimination and inequality are permitted or allowed. There are, to be sure, abundant

authorities requiring actual denial of the equal protection of the law before courts should

assume the task of setting aside a law vulnerable on that score, but premises and

circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits

of the denial of the equal protection of the law and is on that account bad. We see no

difference between a law which denies equal protection and a law which permits of such

denial. A law may appear to be fair on its face and impartial in appearance, yet, if it

permits of unjust and illegal discrimination, it is within the constitutional prohibition.

(By analogy, Chy Lung vs.Freeman [1876], 292 U. S., 275; 23 Law, ed., 550;

Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100

U. S., 339; 25 Law ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567;

Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145; Yick Wo vs. Hopkins

[1886], 118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18

Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct.

Rep. 145; 55 Law. ed., 191; Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38

Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be adjudged

unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209

U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84

Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If a law has the effect of denying the equal

protection of the law it is unconstitutional|. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S.,

3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery,

94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36

A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said

Act be in force in one or several provinces and not be in force in the other provinces, but

one province may appropriate for the salary of a probation officer of a given year—and

have probation during that year—and thereafter decline .to make further appropriation,

and have no probation in subsequent years. While this situation goes rather to the abuse

of discretion which delegation implies, it is here indicated to show that the Probation Act

sanctions a situation which is intolerable in a government of laws, and to prove how easy

it is, under the Act, to make the guaranty of the equality clause but "a rope of sand".

(Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150, 154; 41 Law. ed., 666; 17

Sup. Ct. Rep., 255.)

Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United

States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the

United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the

contention that there was a denial of the equal protection of the laws because, as held in

Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991),

the guaranty of the equality clause does not require territorial uniformity. It should be

observed, however, that this case concerns the right to preliminary investigations in

criminal cases originally granted by General Orders No. 58. No question of legislative

authority was involved and the alleged denial of the equal protection of the laws was the

result of the subsequent enactment of Act No. 612, amending the charter of the City of

Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in the

court of first instance of the City of Manila, the defendant * * * shall not be entitled as of

right to a preliminary examination in any case where the prosecuting attorney, after a

due investigation of the facts * * * shall have presented an information against him in

proper form * * *." Upon the other hand, an analysis of the arguments and the decision

indicates that the investigation by the prosecuting attorney—although not in the form

had in the provinces—was considered a reasonable substitute for the City of Manila,

considering the peculiar conditions of the city as found and taken into account by the

legislature itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to

a situation where the constitution of Missouri permits appeals to the Supreme Court of

the state from final judgments of any circuit court, except those in certain counties for

which counties the constitution establishes a separate court of appeals called the St.

Louis Court of Appeals. The provision complained of, then, is found in the constitution

itself and it is the constitution that makes the apportionment of territorial jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void

because it is also repugnant to the equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons already

stated, the next inquiry is whether or not the entire Act should be avoided.

"In seeking the legislative intent, the presumption is against any mutilation of a statute,

and the courts will resort to elimination only where an unconstitutional provision is

interjected into a statute otherwise valid, and is so independent and separable that its

removal will leave the constitutional features and purposes of the act substantially

unaffected by the process." (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. Pv. A., 485;

55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U. S., 235, 240; 73 Law.

ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25

Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of

statutes in the following language:

"* * * where part of a statute is, void, as repugnant to the Organic Law, while another part

is valid, the valid portion, if separable from the invalid, may stand and be enforced. But in

order to do this, the valid portion must be so far independent of the invalid portion that

it is fair to presume that the Legislature would have enacted it by itself if they had

supposed that they could not constitutionally enact the other. (Mutual Loan

Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes

Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to

make a complete, intelligible, and valid statute, which carries out the legislative intent.

(Pearson vs. Bass, 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated

without causing results affecting the main purpose of the Act, in a manner contrary to the

intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969;

Harpervs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union

Sewer Pipe Co., 184 U. S., 54O. 565; People vs. Strassheim, 240 111., 279, 300; 88 N,. E.,

821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language

used in the invalid part of a statute can have no legal force or efficacy for any purpose

whatever, and what remains must express the legislative will, independently of the void

part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W.,

473; 23 L. R. A., N. S., 839; Vide, also, U. S. vs. .Rodriguez [1918], 38 Phil., 759;

Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108,

1125; 15 Sup. Ct. Rep., 912; 6 R. C. L., 121.)"

It is contended that even if section 11, which makes the Probation Act applicable only in

those provinces in which the respective provincial boards have provided for the salaries

of probation officers were inoperative on constitutional grounds, the remainder of the

Act would still be valid and may be enforced. We should be inclined to accept the

suggestion but for the fact that said section is, in our opinion, so inseparably linked with

the other portions of the Act that with the elimination of the section what would be left is

the bare idealism of the system, devoid of any practical benefit to a large number of

people who may be deserving of the intended beneficial results of that system. The clear

policy of the law, as may be gleaned from a careful examination of the whole context, is

to make the application of the system dependent entirely upon the affirmative action of

the different provincial boards through appropriation of the salaries for probation

officers at rates not lower than those provided for provincial fiscals. Without such action

on the part of the various boards, no probation officers would be appointed by the

Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into

provinces and it needs no argument to show that if not one of the provinces—and this is

the actual situation now—appropriates the necessary fund for the salary of a probation

officer, probation under Act No. 4221 would be illusory. There can be no probation

without a probation officer. Neither can there be a probation officer without a probation

system.

Section 2 of the Act provides that the probation officer shall supervise and visit the

probationer. Every probation officer is given, as to the persons placed in probation under

his care, the powers of a police officer. It is the duty of probation officers to see that the

conditions which are imposed by the court upon the probationer under his care are

complied with. Among those conditions, the following are enumerated in section 3 of the

Act:

"That the probationer (a) shall indulge in no injurious or vicious habits;

"(b) Shall avoid places or persons of disreputable or harmful character;

"(c) Shall report to the probation officer as directed by the court or probation officers;

"(d) Shall permit the probation officer to visit him at reasonable times at his place of

abode or elsewhere;

"(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer

concerning his conduct or condition;

"(f) Shall endeavor to be employed regularly;

"(g) Shall remain or reside within a specified place or locality;

"(h) Shall make reparation or restitution to the aggrieved parties for actual damages or

losses caused by his offense;

"(i) Shall support his wife and children;

"(j) Shall comply with such orders as the court may from time to time make; and

"(k) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,

promulgated in accordance with law."

The court is required to notify the probation officer in writing of the period and terms of

probation. Under section 4, it is only after the period of probation, the submission of a

report of the probation officer and appropriate finding of the court that the probationer

has complied with the conditions of probation that probation may be definitely

terminated and the probationer finally discharged from supervision. Under section 5, if

the court finds that there is non-compliance with said conditions, as reported by the

probation officer, it may issue a warrant for the arrest of the probationer and said

probationer may be committed with or without bail. Upon arraignment and after an

opportunity to be heard, the court may revoke, continue or modify the probation, and if

revoked, the court shall order the execution of the sentence originally imposed. Section 6

prescribes the duties of probation officers: "It shall be the duty of every probation officer

to furnish to all persons placed on probation under his supervision a statement of the

period and conditions of their probation, and to instruct them concerning the same; to

keep informed concerning their conduct and condition; to aid and encourage them by

friendly advice and admonition, and by such other measures, not inconsistent with the

conditions imposed by the court as may seem most suitable, to bring about improvement

in their conduct and condition; to report in writing to the court having jurisdiction over

said probationers at least once every two months concerning their conduct and

condition; to keep records of their work; to make such reports as are necessary for the

information of the Secretary of Justice and as the latter may require; and to perform such

other duties as are consistent with the functions of the probation officer and as the court

or judge may direct. The probation officers provided for in this Act may act as parole

officers for any penal or reformatory institution for adults when so requested by the

authorities thereof, and, when designated by the Secretary of Justice, shall act as parole

officer of persons released on parole under Act Numbered Forty-one Hundred and

Three, without any additional compensation."

It is argued, however, that even without section 11 probation officers may be appointed

in the provinces under section 1O.of the Act which provides as follows:

"There is hereby created in the Department of Justice and subject to its supervision and

control, a Probation Office under the direction of a Chief Probation Officer to be

appointed by the Governor-General with the advise and consent of the Senate who shall

receive a salary of four thousand eight hundred pesos per annum. To carry out the

purposes of this Act, there is hereby appropriated out of any funds in the Insular

Treasury not otherwise appropriated, the sum of fifty thousand pesos to be disbursed by

the Secretary of Justice, who is hereby authorized to appoint probation offieers and the

administrative personnel of the probation office under civil service regulations from

among those who possess the qualifications, training and experience prescribed by the

Bureau of Civil Service, and shall fix the compensation of such probation officers and

administrative personnel until such positions shall have been included in the

Appropriation Act."

But the probation officers and the administrative personnel referred to in the foregoing

section are clearly not those probation officers required to be appointed for the

provinces under section 11. It may be said, reddendo singula singulis, that the probation

officers referred to in section 10 above-quoted are to act as such, not in the various

provinces, but in the central office known as the Probation Office established in the

Department of Justice, under the supervision of a Chief Probation Officer. When the law

provides that "the probation officer" shall investigate and make reports to the court

(sees. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec.

2; sec. 6, par. d) ; that the probationer shall report to the "probation officer" (sec. 3, par.

c), shall allow "the probation officer" to visit him (sec. 3, par. d), shall truthfully answer

any reasonable inquiries on the part of "the probation officer" concerning his conduct or

condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of

the period and terms of probation (sec. 3, last par.), it means the probation officer who is

in charge of a particular probationer in a particular province. It never could have been

the intention of the legislature, for instance, to require a probationer in Batanes, to

report to a probation officer in the City of Manila, or to require, a probation officer in

Manila to visit the probationer in the said province of Batanes, to place him under his

care, to supervise his conduct, to instruct him concerning the conditions of his probation

or to perform such other functions as are assigned to him by law.

That under section 10 the Secretary of Justice may appoint as many probation officers as

there are provinces or groups of provinces is, of course, possible. But this would be

arguing on what the law may be or should be and not on what the law is. Between is

and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass

upon. We may think a law better otherwise than it is. But much as has been said

regarding progressive interpretation and judicial legislation we decline to amend the

law. We are not permitted to read into the law matters and provisions which are not

there. Not for any purpose—not even to save a statute from the doom of invalidity.

Upon the other hand, the clear intention and policy of the law is not to make the Insular

Government defray the salaries of probation officers in the provinces but to make the

provinces defray them should they desire to have the Probation Act apply thereto. The

sum of P50,000 appropriated "to carry out the purposes of this Act", is to be applied,

among other things, for the salaries of probation officers in the central office at Manila.

These probation officers are to receive such compensations as the Secretary of Justice

may fix "until such positions shall have been included in the Appropriation Act". It was

not the intention of the legislature to empower the Secretary of Justice to fix the salaries

of probation officers in the provinces or later on to include said salaries in an

appropriation act. Considering, further, that the sum of P50,000 appropriated in section

10 is to cover, among other things, the salaries of the administrative personnel of the

Probation Office, what would be left of the amount can hardly be said to be sufficient to

pay even nominal salaries to probation officers in the provinces. We take judicial notice

of the fact that there are 48 provinces in the Philippines and we do not think it is

seriously contended that, with the fifty thousand pesos appropriated for the central

office, there can be in each province, as intended, a probation officer with a salary not

lower than that of a provincial fiscal. If this is correct, the contention that without section

11 of Act No. 4221 said act ia complete is an impracticable thing under the remainder of

the Act, unless it is conceded that in our case there can be a system of probation in the

provinces without probation officers.

Probation as a development of modern penology is a commendable system. Probation

laws have been enacted, here and in other countries, to permit what modern

criminologists call the "individualization of punishment", the adjustment of the penalty

to the character of the criminal and the circumstances of his particular case. It provides a

period of grace in order to aid in the rehabilitation of a penitent offender. It is believed

that, in any cases, convicts may be reformed and their development into hardened

criminals aborted. It, therefore, takes advantage of an opportunity for reformation and

avoids imprisonment so long as the convict gives promise of reform. (United

States vs.Murray' [1925], 275 U. S., 347, 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct.

Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The welfare of society is its chief end

and aim. The benefit to the individual convict is merely incidental. But while we believe

that probation is commendable as a system and its implantation into the Philippines

should be welcomed, we are forced by our inescapable duty to set the law aside because

of repugnancy to our fundamental law.

In arriving at this conclusion, we have endeavored to consider the different aspects

presented by able counsel for both parties, as well in their memorandums as in their oral

argument. We have examined the cases brought to our attention, and others we have

been able to reach in the short time at our command for the study and deliberation of

this case. In the examination of the cases and in the analysis of the legal principles

involved we have inclined to adopt the line of action which in our opinion, is supported

by better reasoned authorities and is more conducive to the general welfare. (Smith, Bell

& Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have

declined to be bound by certain adjudicated cases brought to our attention, except where

the point or the principle is settled directly or by clear implication by the more

authoritative pronouncements of the Supreme Court of the United States. This line of

approach is justified because:

(a) The constitutional relations between the Federal and the State governments of the

United States and the dual character of the American Government is a situation which

does not obtain in the Philippines;

(b) The, situation of a state of the American Union or of the District of Columbia with

reference to the Federal Government of the. United States is not the situation of a

province with respect to the Insular Government (Art. I, sec. 8, cl. 17, and 1O.h

Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871) ;

(c) The distinct federal and state judicial organizations of the United States do not

embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran

[1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases" (Justice Holmes in

Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace

with

* * * new developments of times and circumstances" (Chief Justice Waite in Pensacola

Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law

Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be

interpreted having in view existing local conditions and environments.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is,

accordingly, granted. Without any pronouncement regarding costs. So ordered.

Avancena, C. J., Imperial, Diaz, and Concepcion, JJ., concur.

[1] 35 Off. Gaz., 738. See also Resolutions of December 17, 1935.

VILLA-REAL and ABAD SANTOS, JJ.:

We concur in the result.

Act No. 4221 declared unconstitutional; writ granted.