1. People v. Vera

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PEOPLE OF THE PHIL. vs. JOSE O. VERA

FIRST DIVISION

[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 CU UNJIENG, respondents .

Solicitor-General Tuason and City Fiscal Diaz for the Government.

DeWitt, Perkins & Ponce Enrile for the Hongkong & Shanghai BankingCorporation.

Vicente J. Francisco, Feria & La O, Orense & Belmonte and Gibbs & McDough

for respondent Cu Unjieng.

No appearance for respondent Judge.

SYLLABUS

1. PROBATION; AUTHORITY OF PROBATION COURT TO LOOK INTOCIRCUMSTANCES OF OFFENSE; SUPERIOR AND INFERIOR COURTS; LEGALRELATION AND ETHICAL STANDARD. — Probation implies guilt by final judgment.

While a probation court hearing a probation case may look into thecircumstances attending the commission of the offense, this does not authorize itto reverse the findings and conclusions of the Supreme Court, either directly orindirectly, especially where from its own admission reliance was merely had onthe printed briefs, averments, and pleadings of the par ties. As observed in Shiojivs. Harvey ( [1922], 43 Phil., 333, 337), and reiterated in subsequent cases," if each and every Court of First Instance could enjoy the privilege of overrulingdecisions of the Supreme Court, there would be no end to litigation, and judicialchaos would result." A becoming modesty of inferior courts demands consciousrealization of the position that they occupy in the interrelation and operation of

the integrated judicial system of the nation.2. CONSTITUTIONAL LAW; THE PRESIDENT AND HIS VETO POWER;

PRESIDENT'S VETO NOT BINDING ON THE SUPREME COURT. — In vetoing a bill,the President may express the reasons which he may deem proper, but hisreasons are not binding upon the Supreme Court in the determination of actualcontroversies submitted to it for determination. Whether or not the Executiveshould express or in any manner insinuate his opinion on a matter encompassedwithin his broad constitutional power of veto but which happens to be at thesame time pending determination before the Supreme 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 the judgment of the court one way or another and prevent it from taking what in itsopinion is the proper course of action to take in a given case.

3. ID.; INDEPENDENCE OF THE JUDICIARY. — If it is ever necessary tomake any vehement affirmance during this formative period of our politicalhistory, it is that the judiciary is independent of the Executive no less than of theLegislative department of our government — independent in the performance of

its functions, undeterred by any consideration, free from politics, indifferent topopularity, and unafraid of criticism in the accomplishment of its sworn duty as itsees it and understands it.

4. ID.; WHEN CONSTITUTIONALITY MAY BE RAISED. — Theconstitutionality of an act of the legislature will not be determined by the courtsunless that question is properly raised and presented in appropriate cases and isnecessary to a determination of the case; i. e., the issue of constitutionality mustbe the very lis mota presented.

5. ID.; ID.; RESORT TD EXTRAORDINARY LEGAL REMEDIES;ADJUDICATED CASES. — The question of the constitutionality of an Act of thelegislature is frequently raised in ordinary actions. Nevertheless, resort may bemade to extraordinary legal remedies, particularly where the remedies in theordinary course of law, even if avail able, are not plain, speedy and adequate.

Thus, in Cu Unjieng vs. Patstone ([1922], 42 Phil., 818), the Supreme Court heldthat the question of the constitutionality of a statute may be raised by thepetitioner in mandamus proceedings (see also 12 C. J., p. 783); and inGovernment of the Philippine Islands vs. Springer ([1927], 50 Phil., 259, affirmedin Springer vs. Government of the Philippine Islands [1928], 277 U. S., 189; 72Law. ed., 845), this court declared an act of the legislature unconstitutional in anaction of quo warranto brought in the name of the Government of thePhilippines. It has also been held that the constitutionality of a statute may bequestioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on HabeasCorpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on anapplication for injunction to restrain action under the challenged statute(mandatory, see Cruz vs. Youngberg [1931] 56 Phil., 234); and even on anapplication for preliminary in junction where the determination of theconstitutional 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.)

6. ID. ; ID.; ID.; ID.; PROHIBITION; RULE WHERE JURISDICTION ISEXCLUSIVELY DERIVED FROM UNCONSTITUTIONAL STATUTE. — 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 theinferior tribunal from usurping a jurisdiction with which it is not legally vested.

The general rule, although there is a conflict in the cases, is that the writ of prohibition will notice where the inferior court has jurisdiction independent of thestatute the constitutionality of which is questioned, because in such cases the



inferior court having jurisdiction may itself determine the constitutionality of thestatute, and its decision may be subject to review, and consequently thecomplainant in such cases ordinarily has adequate remedy by appeal withoutresort to the writ of prohibition. But where the inferior court or tribunal derivesits jurisdiction exclusively from an unconstitutional statute, it may be preventedby the writ of prohibition from en forcing that statute.

7. ID.; ID.; ID.; ID.; ID.; COURTS OF FIRST INSTANCE; LIMITED

JURISDICTION IN PROBATION CASES. — A Court of First Instance sitting inprobation proceedings is a court of limited jurisdiction. Its jurisdiction in suchproceeding is conferred exclusively by Act No. 4221 of the Philippine Legislature.

8. ID.; ID. CONSTITUTIONALITY MUST BE RAISED AT THE EARLIESTOPPORTUNITY; EXCEPTIONS. — As a general rule, the question constitutionalitymust be raised at the earliest opportunity, so that if not raised by the pleadings,ordinarily it may be raised at the trial, and if not raised in the trial court, it willnot be considered on appeal. But the general rule admits of exceptions. Courts, inthe exercise of sound discretion, may determine the time when a questionaffecting the constitutionality of a statute should be presented. Thus, in criminal

cases, although there is a very sharp conflict of authorities, it is said that thequestion may be raised for the first time at any stage of the ù proceedings, eitherin the trial court or on appeal. Even in civil cases, it has been held that it is theduty of a court to pass on the constitutional question, though raised for the firsttime on appeal, if it appears that a determination of the question is .necessary toa decision of the case. And it has been held that a constitutional question will beconsidered by an appellate court at any time, where it involves the jurisdiction of the court below.

9. ID.; ID.; PERSONAL AND SUBSTANTIAL INTEREST OF PARTY RIGHTAND INTEREST OF THE PEOPLE OF THE PHILIPPINES TO CHALLENGECONSTITUTIONALITY. — The person who impugns the validity of a statute musthave 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 sayingthat 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 havingit set aside. Of greater import than the damage caused by the illegal expenditureof public funds is the mortal wound inflicted upon the fundamental law by theenforcement of an invalid statute. Hence, the well-settled rule that the state canchallenge the validity of its own laws.

10. ID.; ID.; RELIANCE ON PROBATION ACT, BY FISCAL DOES NOTCONSTITUTE ESTOPPEL AGAINST THE PEOPLE. — The mere fact that theProbation Act has been repeatedly relied upon in the past and all that time hasnot been attacked as unconstitutional by the Fiscal of Manila but, on thecontrary, has been impliedly regarded by him as constitutional, is no reason forconsidering the People of the Philippines estopped from now as sailing its validity.For courts will pass upon a constitutional question only when presented before itin bona fide cases for determination, and the fact that the question has not beenraised before is not a valid reason for refusing to allow it to be raised later. Thefiscal 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.

11. ID.; ID.; WHEN DETERMINATION OF CONSTITUTIONALITYNECESSARY; WAIVER IF CASE CAN BE DECIDED ON OTHER POINTS. — Whilethe court will meet the question with firmness, where its decision isindispensable, 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 onother 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 thedetermination of a constitutional question is, necessary whenever it is essentialto the decision of the case, as where the right of a party is founded solely on astatute the validity of which is attacked. (12 C. J., p. 782.)

12. ID.; ID.; ID.; REASONS OF PUBLIC POLICY JUSTIFYINGCONSTITUTIONAL INQUIRY. — The Supreme Court will take cognizance of thefact that the Probation Act is a new addition to our statute books and its validityhas never before been passed upon by the courts; that many persons accused andconvicted 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 re respondent M. C. U. has been atlarge for a period of about four years since his first conviction. All await thedecision of this court on the constitutional question. Considering, therefore, theimportance 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.

13. ID.; THE JUDICIARY; ITS DUTY TO ENFORCE THE CONSTITUTION. —Under a doctrine peculiarly American, it is the office and duty of the judiciary to

enforce the Constitution. The Supreme Court, by clear implication from theprovisions of section 2, subsection 1, and section 10, of Article VIII of theConstitution, may declare an act of the National Legislature invalid because inconflict with the fundamental law. It will not shirk from its sworn duty to enforcethe Constitution. And, in clear cases, it will not hesitate to Five effect to thesupreme law by setting aside a statute in conflict therewith. This is of theessence of judicial duty.

14. ID.; ID.; STATUTORY CONSTRUCTION; PRESUMPTION IN FAVOR OFCONSTITUTIONALITY; RATIONALE OF PRESUMPTION. — All reason able doubtsshould be resolved in favor of the constitutionality of a statute. An act of the

legislature approved by the executive, is presumed to be within constitutionallimitations. The responsibility of upholding the Constitution rests not on thecourts alone but on the legislature as well. "The question of the validity of everystatute is first determined by the legislative department of the governmentitself." ( U. S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case is. Board of Health andHeiser [1913], 24 Phil., 250, 276; U. S. vs. Joson t1913], 26 Phil., 1.) And astatute finally comes before the courts sustained by the sanction of theexecutive. The members of the Legislature and the Chief Executive have takenan oath to support the Constitution and it must be presumed that they havebeen true to this oath and that in enacting and sanctioning a particular law they



did not intend to violate the Constitution. Then, there is that peculiar politicalphilosophy which bids the judiciary to reflect the wisdom of the people asexpressed through an elective Legislature and an elective Chief Executive. Itfollows that the courts will not set aside a law as violative of the Constitutionexcept in clear cases.

15. ID.; THE PARDONING POWER UNDER THE JONES LAW AT THECONSTITUTION OF THE PHILIPPINES. — Section 21 of the Jones Law, in e at the

time of the approval of Act No. 4221, vests in the Governor-General of thePhilippines "the exclusive power to grant pardons and reprieves and remit finesand forfeitures." This power is now vested in the President of the Philippines. Theprovisions of the Jones Law and the Constitution of the Philippines differ in somerespects. The adjective "exclusive" found in the Jones Law has been omitted fromthe Constitution. Under the Jones Law, as at common law, pardon could begranted any time after the commission of the offense, either before or afterconviction. The Governor-General of the Philippines was thus empowered, likethe President of the United States, to pardon a person before the facts of his casewere fully brought to light. The framers of our Constitution thought this

undesirable and, following most of the state constitutions, provided that thepardoning power can only be exercised "after conviction". So too, under the newConstitution, the pardoning power does not extend to "cases of impeachment".

This is also the rule generally followed in the United States.

16. ID.; ID.; ROYAL PARDON UNDER ENGLISH LAW; POWER OF THEHOUSE OF LORDS. — The rule in England is different. There, a royal pardon cannot be pleaded in bar of an impeachment; "but," says Blackstone, "after theimpeachment has been solemnly heard and determined, it is not understood thatthe king's royal grace is further restrained or abridged." The reason for thedistinction 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" but extends to the wholepunishment attached by law to the offense committed. The House of Lords, on aconviction may, by its sentence, inflict capital punishment, perpetualbanishment, fine or imprisonment, depending upon the gravity of the offensecommitted, together with removal from office and incapacity to hold office.

17. ID.; ID.; COMMUTATION AND AMNESTY UNDER THE PHILIPPINECONSTITUTION. — Our Constitution makes specific mention of "commutation"and of the power of the executive to impose, in the par dons he may grant, suchconditions, restrictions and limitations as he may deem proper. Amnesty may begranted by the President under the Constitution but only with the concurrence of the National Assembly.

18. ID.; ID.; EXCLUSIVE CHARACTER OF THE PARDONING POWER. — The benign prerogative of mercy reposed in the Executive cannot be taken awaynor fettered by any legislative restrictions, nor can like power be given by thelegislature to any other officer or authority. The coordinate departments of government have nothing to do with the pardoning power, since no personproperly belonging to one of the departments can exercise any powersappertaining to either of the others except in cases expressly provided for by the



constitution. (20 R. C. L., pp. 540, 541.) Where the pardoning power is conferredon the executive without express or implied limitations, the grant is exclusive,and the legislature can neither exercise such power itself nor delegate itelsewhere, nor interfere with or control the proper exercise thereof (12 C. J., pp.838, 839).

19. ID.; PROBATION, POWER OF THE PHILIPPINE LEGISLATURE TOENACT A PROBATION LAW. — The Philippine Legislature, like the Congress of the

United States, may legally enact a probation law under its broad power to fix thepunishment of any and all penal offenses. The legislative power to setpunishment for crime is very broad, and in the exercise of this power thelegislature may confer on trial judges, if it sees fit, the largest discretion as to thesentence to be imposed, as to the beginning and end of the punishment, andwhether it should be certain, or indeterminate, or conditional. Indeed, thePhilippine Legislature has defined all crimes and fixed the penalties for theirviolation. Invariably, the legislature has demonstrated the desire to vest in thecourts — particularly the trial courts — large discretion in imposing the penaltieswhich 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 bestdetermine the penalties which an individual convict, peculiarly circumstance,should suffer.

20. ID.; ID.; PROBATION AND PARDON NOT COTERMINOUS;PROBATION DISTINGUISHED FROM REPRIEVE AND COMMISSION. — Probationand pardon are not coterminous; nor are they the same. They are actuallydistinct and different from each other, both in origin and in nature. In probation,the probationer is in no true sense, as in pardon, a freeman He is not finally andcompletely exonerated. He is not exempt from the entire punishment which thelaw inflicts. Under the Probation Act, the probationer's case is not terminated by

the mere fact that he is placed on probation. The probationer, during the periodof probation, remains in legal custody — subject to the control of the probationofficer and of the court, he may be rearrested upon the non-fulfillment of theconditions of probation and, when rearrested, may be committed to prison toserve the sentence originally imposed upon him. Probation should also bedistinguished from reprieve and from commutation of the sentence.

21. ID.; ID.; ID.; PROBATION NOT IN CONFLICT WITH PARDONINGPOWER. — The Probation Act does not conflict with the pardoning power of theExecutive. The pardoning power, in respect to those serving their probationarysentences, remains as full and complete as if the Probation Law had never beenenacted. The President may yet pardon the probationer and thus place it beyondthe power of the court to order his rearrest and imprisonment.

22. ID.; DIVISION OF POWERS. — Under our constitutional systempowers of government are distributed among three coordinate and substantiallyindependent organs: the legislative, the executive and the judicial. Each of thesedepartments of the government derives its authority from the Constitutionwhich, in turn, is the highest expression of the popular will. Each has exclusivecognizance of the matters within its jurisdiction, and is supreme with in its ownsphere.



23. ID.; ID.; DELEGATION OF LEGISLATIVE AUTHORITY HISTORICALDEVELOPMENT. — The power to make laws — the legislative power — is vestedin a bicameral Legislature by the Jones Law and in a unicameral NationalAssembly by the Constitution. The Philippine Legislature or the NationalAssembly may not escape its duties and responsibilities by delegating that powerto any other body or authority. Any attempt to abdicate the power isunconstitutional and void. on the principle that potestas de legata non delegare potest . This principle is said to have originated with the glossators, wasintroduced into English law through a misreading of Bracton, there developed asa principle of agency, was established by Lord Coke in the English public law indecisions forbidding the delegation of judicial power, and found its way intoAmerica as an enlightened principle of free government. It has since become anaccepted corollary of the principle of separation of powers.

24. ID.; ID.; ID.; RULE FORBIDDING DELEGATION OF LEGISLATIVEAUTHORITY NOT INFLEXIBLE; EXCEPTIONS. — The rule, however which forbidsthe delegation of legislative power is not absolute and inflexible. It admits of

exceptions. An exception sanctioned by immemorial practice permits the centrallegislative body to delegate legislative powers to local authorities. On quite thesame principle, Congress is empowered to delegate legislative power to suchagencies in the territories of the United States as it may select. Courts have alsosustained the delegation of legislative power to the people at large, though someauthorities maintain that this may not be done. Doubt less, also, legislativepower may be delegated by the Constitution itself. Section 14, paragraph 2, of Article VI of the Constitution of the Philippines provides that "The NationalAssembly may by law authorize the President, subject to such limitations andrestrictions 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 samearticle of the Constitution provides that "In times of war or other nationalemergency, the National Assembly may by law authorize the President, for alimited period and subject to such restrictions as it may prescribe, to promulgaterules and regulations to carry out a declared national policy."

25. ID.; ID.; ID.; TEST OF UNDUE DELEGATION; DETAILS OFEXECUTION. — In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to inquire whether the statute was completein all its terms and provisions when it left the hands of the legislature so thatnothing was left to the judgment of any other appointee or delegate of thelegislature. In United States vs. Ang Tang Ho ( [1922], 43 Phil., 1), the SupremeCourt adhered to the foregoing rule. The general rule, however, is limited byanother rule that to a certain extent matters of detail may be left to be filled inby rules and regulations to be adopted or promulgated by executive officers andadministrative boards. As a rule, an act of the legislature is incomplete and henceinvalid if it does not lay down any rule or definite standard by which theadministrative board may be guided in the exercise of the discretionary powersdelegated to it.

26. ID.; ID.; ID.; PROBATION ACT MAKES VIRTUAL SURRENDER OF



LEGISLATIVE POWER TO PROVINCIAL BOARDS. — The Probation Act does not, bythe force of any of its provisions, fix and impose upon the provincial boards anystandard or guide in the exercise of their discretionary power. What is granted isa "roving commission" which enables the provincial boards to exercise arbitrarydiscretion. By section 11 of the Act, the legislature does seemingly on its ownauthority extend the benefits of the Probation Act to the provinces but in realityleaves the entire matter for the various provincial boards to determine. If aprovincial board does not wish to have the Act applied in its province, all that ithas to do is to decline to appropriate the needed amount for the salary of aprobation officer. This is a virtual surrender of legislative power to the provincialboards.

27. ID.; ID.; ID.; TRUE DISTINCTION BETWEEN POWER TO MAKE LAWAND DISCRETION AS TO ITS EXECUTION; ADJUDICATED CASES. — The truedistinction is between the delegation of power to make the law, whichnecessarily involves a discretion as to what it shall be, and conferring anauthority or discretion as to its execution, to be exercised under and in pursuanceof 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 aredecisions of the Supreme Court in the Municipality of Cardona vs. Municipality of Binañgonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39. Phil., 660); and Cruz vs. Youngberg ([1931], 56 Phil., 234).

28. ID.; ID.; ID.; CONDITIONAL ENFORCEMENT OF A LAW; RELAXATIONOF THE DOCTRINE. — Laws may be made effective on certain contingencies, asby proclamation of the executive or the adoption by the people of a particularcommunity (6 R. C. L., 116, 170- 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 apower not legislative which it may itself rightfully exercise. The power toascertain facts is such a power which may be delegated. There is nothingessentially legislative in ascertaining the existence of facts or conditions as thebasis of the taking into effect of a law. That is a mental process common to allbranches of the government. Notwithstanding the apparent tendency to relaxthe rule pro hi biting delegation of legislative authority on account of thecomplexity arising from social and economic forces at work in this modernindustrial age, the orthodox pronouncement of .Judge Cooley in his work onConstitutional Limitations finds restatement in Professor Willoughby's treatise on

the Constitution of the United States and is accepted.

29. ID.; ID.; ID.; OPERATION OF PROBATION ACT NOT CONTINGENT ONSPECIFIED FACTS OR CONDITIONS; DISCRETION VESTED IN PROVINCIALBOARDS ARBITRARY. — The legislature has not made the operation of theProbation Act contingent upon specified facts or conditions to be ascertained bythe provincial board. It leaves the entire operation or non-operation of the lawupon the provincial boards. The discretion vested is arbitrary be cause it isabsolute and unlimited. A provincial board need not investigate conditions or findany 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 maytake into consideration certain facts or conditions; and, again, it may not. It mayhave any purpose or no purpose at all. It need not give any reason or have anyreason whatsoever for refusing or failing to appropriate any funds for the salaryof a probation officer. This is a matter which rests entirely at its pleasure.

30. ID.; ID.; ID.; LOCAL OPTION LAWS RIGHT OF LOCAL SELF-GOVERNMENT; SUSPENSION OF OPERATION OF A GENERAL LAW

COUNTENANCED. — The legislature may enact laws for a particular localitydifferent from those applicable to other localities and, while recognizing the forceof the principle hereinabove expressed, courts in many jurisdictions havesustained the constitutionality of the submission of option laws to the vote of thepeople. (6 R. C. L., p. 171.) But option laws thus sustained treat of subjects purelylocal in character which should receive different treatment in different localitiesplaced under different circumstances. Without denying the right of local self-government and the propriety of leaving matters of purely local concern in thehands of local authorities or for the people of small communities to pass upon inmatters 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 amanner so unqualified and absolute as provided in Act No. 4221.

31. ID.; ID.; ID.; PROVINCIAL BOARDS EMPOWERED TO SUSPENDOPERATION OF PROBATION ACT. — The statute does not expressly state that theprovincial boards may suspend the operation of the Probation Act in particularprovinces but, considering that, in being vested with the authority to appropriateor not the necessary funds for the salaries of probation officers they thereby aregiven absolute discretion to determine whether or not the law should take effector operate in their respective provinces, the provincial boards are in realityempowered by the legislature to suspend the operation of the Probation Act in

particular provinces, the Act to be held in abeyance until the provincial boardsshould decide otherwise by appropriating the necessary funds. The validity of alaw is not tested by what has been done, but by what may be done under itsprovisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil.,259; 12 C. ,T., p. 786.)

32. ID.; ID.; ID.; LEGISLATIVE POLICY; EXECUTION THEREOFCONSTITUTION BOTH A GRANT AND LIMITATION OF POWER. — A great deal of latitude should be granted to the legislature not only in the expression of whatmay 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 governmentlives because of the inexhaustible reservoir of power behind it. It isunquestionable that the mass of powers of government is vested in therepresentatives of the people and that these representatives are no furtherrestrained under our system than by the express language of the instrumentimposing the restraint, or by particular provisions which by clear intendment,have that effect. But it should be borne in mind that a constitution is both agrant and a limitation of power and one of these time-honored limitations is that,subject to certain exceptions, legislative power shall not be delegated.



33. ID.; EQUAL PROTECTION OF THE LAWS; CLASS LEGISLATION;CLASSIFICATION ON REASONABLE BASIS. — " . . . nor shall any person be deniedthe equal protection of the laws." This basic individual right sheltered by theConstitution is a restraint on all the three grand departments of our governmentand on the subordinate instrumentalities and subdivisions thereof, and on manyconstitutional powers, like the police power, taxation and eminent domain. Whatmay be regarded as a denial of the equal protection of the laws is a question notalways easily determined. No rule that will cover every case can be formulated.Class legislation discriminating against some and favoring others is prohibited.But classification on a reasonable basis, and not made arbitrarily or capriciously,is permitted. The classification, however, to be reasonable must be based onsubstantial distinctions which make real differences; it must be germane to thepurposes of the law; it must not be limited to existing conditions only, and mustapply equally to each member of the class.

34. ID.; ID.; ID.; RESULTANT INEQUALITY FROM UNWANTEDDELEGATION; PROBATION ACT PERMITS DENIAL OF EQUAL PROTECTION. — In

the case of Act No. 4221, the resultant inequality may be said to flow from theunwarranted delegation of legislative power to the provincial boards. Whileinequality may result in the application of the law and in the conferment of thebenefits therein provided, inequality is not in all cases the necessary result. Butwhatever may be the case, it is clear that section 11 of the Probation Act createsa situation in which discrimination and inequality are permitted or allowed.

There are, to be sure, abundant authorities requiring actual denial of the equalprotection of the law before courts should assume the task of setting aside a lawvulnerable 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 alaw which denies equal protection and a law which permits of such denial. A lawmay 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. Inother words, statutes may be adjudged unconstitutional because of their effect inoperation. If a law has the effect of denying the equal protection of the law it isunconstitutional.

35. ID.; ID.; ID.; SECTION 11 OF PROBATION ACT; GOVERNMENT OFLAWS; EQUALITY CLAUSE NOT "A ROPE OF SAND". — Under section 11 of theProbation Act, not only may said Act be in force in one or several provinces andnot be in force in the other provinces, but one province may appropriate for thesalary of a probation officer of a given year — and have probation during thatyear — and thereafter decline to make further appropriation, and have noprobation in subsequent years. While this situation, goes rather to the abuse of discretion which delegation implies, it is here indicated to show that theProbation 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 equalityclause but "a rope of sand."

36. ID.; PARTIAL UNCONSTITUTIONALITY; PRESUMPTION AGAINST



MUTILATION OF STATUTE. — In seeking the legislative intent, the presumption isagainst any mutilation of a statute, and the courts will resort to elimination onlywhere an unconstitutional pro vision is interjected into a statute otherwise valid,and is so independent and separable that its removal will leave the constitutionalfeatures and purposes of the act substantially unaffected by the process.

37. ID.; SECTION 11 OF PROBATION ACT INSEPARABLE FROM REST OFACT; PROBATION AND PROBATION OFFICERS. — Section 11 of the Probation Act

(No. 4221) is inseparably linked with the other portions of the Act that with theelimination 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 deservingof the intended beneficial results of that system. The clear policy of the law, asmay be gleaned from a careful examination of the whole context, is to make theapplication of the system dependent entirely upon the affirmative action of thedifferent provincial boards. If not one of the provinces — and this is the actualsituation now — appropriates the necessary fund for the salary of a probationofficer, probation under Act No. 4221 would be illusory. There can be noprobation without a probation officer. Neither can there be a probation officer

with out a probation system.38. ID.; ID.; PROBATION ACT ANALYZED; SECTIONS 10 AND 11 ACT;

RULE OF STATUTORY CONSTRUCTION. — The probation officer theadministrative personnel referred to in section 10 are clearly not those probationofficers required to be appointed for the provinces under section 11. It may besaid, reddendo singula singulis, that the probation officers referred to in section10 are to act as such, not in the various provinces, but in the central office knownas the Probation Office established in the Department of Justice, under thesupervision of a Chief Probation Officer. When the law provides that "theprobation officer" shall investigate and make reports to the court; that "the

probation officer" shall supervise and visit the probationer; that the probationershall report to the "probation officer", shall al low "the probation officer" to visithim, shall truthfully answer any reasonable inquiries on the part of "theprobation officer" concerning his conduct or condition; that the court shall notify"the probation officer" in writing of the period and terms of probation, it meansthe probation officer who is in charge of a particular probationer in a particularprovince. It never could have been the intention of the legislature, for instance,to re quire 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 thesaid 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 otherfunctions as are assigned to him by law.

39. ID.; ID.; ID.; ID.; WISDOM AND PROPRIETY OF LEGISLATION;PROGRESSIVE INTERPRETATION AND JUDICIAL LEGISLATION. — That undersection 10 the Secretary of Justice may appoint as many probation officers asthere are provinces or groups of provinces is, of course, possible. But this wouldbe 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 isnot 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 judiciallegislation we decline to amend the law. We are not permitted to read into thelaw matters and provisions which are not there. Not for any purpose — not evento save a statute from the doom of invalidity.

40. ID.; ID.; ID.; ID.; APPROPRIATION OF FUNDS; APPOINTMENT OFPROBATION OFFICERS BY SECRETARY OF JUSTICE; JUDICIAL NOTICE. — Theclear 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 theprovinces defray them should they desire to have the Probation Act applythereto. 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 thecentral office at Manila. These probation officers are to receive suchcompensation as the Secretary of Justice may fix "until such positions shall havebeen included in the Appropriation Act". It was not the intention of thelegislature to empower the Secretary of Justice to fix the salaries of probationofficers 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 theProbation Office, what would be left of the amount can hardly be said to besufficient to pay even nominal salaries to probation officers in the provinces. Wetake judicial notice of the fact that there are 48 provinces in the Philippines, andwe do not think it is seriously contended that, with the fifty thousand pesosappropriated for the central office, there can be in each province, as intended, aprobation officer with a salary not lower than that of a provincial fiscal. If this iscorrect, the contention that without section 11 of Act No. 4221 said act iscomplete is an impracticable thing under the remainder of the Act, unless it isconceded that there can be a system of probation in the provinces without

probation officers.41. ID.; PROBATION AS DEVELOPMENT OF MODERN PENOLOGY;

PROBATION ACT AS REPUGNANT TO FUNDAMENTAL LAW. — Probation as adevelopment of modern penology is a commendable system. Probation laws havebeen enacted, here and in other countries, to permit what modern criminologistscall the "individualization of punishment", the adjustment of the penalty to thecharacter of the criminal and the circumstances of his particular case. It providesa period of grace in order to aid in the rehabilitation of a penitent offender. It isbelieved that, in many cases, convicts may be reformed and their developmentinto hardened criminals aborted. It, therefore, takes advantage of an opportunity

for reformation and avoids imprisonment so long as the convict gives promise of reform. The welfare of society is its chief end and aim. The benefit to theindividual convict is merely incidental. But while probation is commendable as asystem and its implantation into the Philippines should be welcomed, the law isset aside because of repugnancy to the fundamental law.

42. ID.; CONSTITUTIONAL RELATIONS; RULES OF STATUTORYCONSTRUCTION; DECISIONS OF UNITED STATES COURTS; LOCAL CONDITIONSAND ENVIRONMENT. — The constitutional relations between the Federal and theState governments of the United States and the dual character of the American



Government is a situation which does not obtain in the Philippines. The situationof a state of the American Union or of the District of Columbia with reference tothe Federal Government of the United States is not the situation of a provincewith respect to the Insular Government; the distinct federal and state judicialorganizations of the United States do not embrace the integrated judicial systemof the Philippines; "General propositions do not decide concrete cases" and "tokeep pace with . . . new developments of times and circumstances", fundamentalprinciples should be interpreted having in view existing local conditions andenvironments.

D E C I S I O N

LAUREL, J p:

This is an original action instituted in this court on August 19, 1937, for theissuance of the writs of certiorari and of prohibition to the Court of First Instanceof 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 PhilippineIslands vs. Mariano Cu Unjieng, et al.", more particularly the application of thedefendant Mariano Cu Unjieng therein for probation under the provisions of ActNo. 4221, and thereafter prohibit the said Court of First Instance from taking anyfurther action or entertaining further the aforementioned application forprobation, to the end that the defendant Mariano Cu Unjieng may be forthwithcommitted to prison in accordance with the final judgment of conviction renderedby 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 theoffended party, and the respondent herein Mariano Cu Unjieng is one of thedefendants, in the criminal case entitled "The People of the Philippine Islands vs.Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of FirstInstance 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 FirstInstance of Manila, who heard the application of the defendant Mariano CuUnjieng 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 andShanghai Banking Corporation intervening in the case as private prosecutor.After a protracted trial unparalleled in the annals of Philippine jurisprudence bothin the length of time spent by the court as well as in the volume of the testimonyand the bulk of exhibits presented, the Court of First Instance of Manila, on

January 8, 1934, rendered a judgment of conviction sentencing the defendantMariano Cu Unjieng to an indeterminate penalty ranging from four years andtwo months of prision correccional to eight years of prison mayor , to pay the



costs and with reservation of civil action to the offended party, the Hongkong andShanghai Banking Corporation. Upon appeal, the court, on March 26, 1935,modified the sentence to an indeterminate penalty of from five years and sixmonths of prision correccional to seven years, six months and twenty-seven daysof prison mayor , but affirmed the judgment in all other respects. Mariano CuUnjieng filed a motion for reconsideration and four successive motions for newtrial which were denied on December 17, 1935, and final judgment wasaccordingly entered on December 18, 1935. The defendant thereupon sought tohave the case elevated on certiorari to the Supreme Court of the United Statesbut the latter denied the petition for certiorari in November, 1936. This court, onNovember 24, 1936, denied the petition subsequently filed by the defendant forleave to file a second alternative motion for reconsideration or new trial andthereafter remanded the case to the court of origin for execution of the

judgment.

The instant proceedings have to do with the application for probation filedby the herein respondent Mariano Cu Unjieng on November 27, 1936, before thetrial 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 nocriminal record and that he would observe good conduct in the future. The Courtof First Instance of Manila, Judge Pedro Tuason presiding, referred the applicationfor probation to the Insular Probation Office which recommended denial of thesame on June 18, 1937. Thereafter, the Court of First Instance of Manila, seventhbranch, 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 thegranting of probation to the herein respondent Mariano Cu Unjieng. The privateprosecution 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 forthe reason that its applicability is not uniform throughout the Islands andbecause section 11 of said Act No. 4221 endows the provincial boards with thepower to make said law effective or otherwise in their respective provinces. Theprivate prosecution also filed a supplementary opposition on April 19, 1937,elaborating on the alleged unconstitutionality of Act No. 4221, as an unduedelegation 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 theconstitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated aresolution with a finding that "las pruebas no han establecido de una maneraconcluyente la culpabilidad del peticionario y que todos los hechos probados noson inconsistentes o incongruentes con su inocencia" and concludes that theherein respondent Mariano Cu Unjieng "es inocente por duda racional" of thecrime for which he stands convicted by this court in G. R. No. 41200, but denyingthe latter's petition for probation for the reason that:



". . . Si este Juzgado concediera la probacion solicitada por lascircunstancias y la historia social que se han expuesto en el cuerpo de estaresolucion, que hacen al peticionario acreedor de la misma, una parte de laopinion publica, atizada por los recelos y las suspicacias, podria levantarseindignada contra un sistema de probacion que permite atisbar en losprocedimientos ordinarios de una causa criminal perturbando la quietud y laeficacia de las decisiones ya recaidas al traer a la superficie conclusionesenteramente 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 tofile a motion for reconsideration. An alternative motion for reconsideration ornew trial was filed by counsel on July 13, 1937. This was supplemented by anadditional motion for reconsideration submitted on July 14, 1937. The aforesaidmotions were set for hearing on July 31, 1937, but said hearing was postponed atthe petition of counsel for the respondent Mariano Cu Unjieng because a motionfor 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 Chaveswhose signature appears in the aforesaid motion subsequently filed a petition forleave to withdraw his appearance as amicus curiae on the ground that themotion for leave to intervene as amici curiae was circulated at a banquet givenby counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that hesigned the same "without mature deliberation and purely as a matter of courtesyto the person who invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with thetrial court for the issuance of an order of execution of the judgment of this courtin 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 datebe set for the hearing of the same and that, at all events, said motion should bedenied 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 partiesincluding the movants for intervention as amici curiae to appear before the courton August 14, 1937. On the last mentioned date, the Fiscal of the City of Manilamoved 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 counselfor Mariano Cu Unjieng, he moved for the postponement of the hearing of bothmotions. The respondent judge thereupon set the hearing of the motion forexecution on August 21, 1937, but proceeded to consider the motion for leave tointervene as amici curiae as in order. Evidence as to the circumstances underwhich said motion for leave to intervene as amici curiae was signed andsubmitted 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 toput 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 HonorableCourt on him, exposing the courts to criticism and ridicule because of theapparent inability of the judicial machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspendedupon 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 hasacted without jurisdiction or in excess of his jurisdiction:

I. Because said respondent judge lacks the power to place respondentMariano Cu Unjieng under probation for the following reasons:

(1) Under section 11 of Act No. 4221, the said Act of the PhilippineLegislature is made to apply only to the provinces of the Philippines; it nowherestates 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 beconstrued 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 generalapplication because it is made to apply only to those provinces in which therespective provincial boards shall have provided for the salary of a probationofficer.

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

II . Because even if the respondent judge originally had jurisdiction toentertain the application for probation of the respondent Mariano Cu Unjieng, henevertheless acted without jurisdiction or in excess thereof in continuing toentertain the motion for reconsideration and by failing to commit Mariano CuUnjieng 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 ActNo. 4221 to the granting or denying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petitionfor 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 saidorder or to modify or change the same.



III. Because the respondent judge made a finding that Mariano CuUnjieng 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 factand in law, and is furthermore in contempt of this court and a violation of therespondent's oath of office as ad interim judge of first instance.

IV. Because the respondent judge has violated and continues to violatehis 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 petitionerHongkong and Shanghai Banking Corporation further contends that Act No. 4221of the Philippine Legislature providing for a system of probation for personseighteen years of age or over who are convicted of crime, is unconstitutionalbecause it is violative of section 1, subsection (1), Article III, of the Constitutionof the Philippines guaranteeing equal protection of the laws because it confersupon the provincial board of each province the absolute discretion to make saidlaw operative or other wise in their respective provinces, because it constitutesan unlawful and improper delegation to the provincial boards of the severalprovinces of the legislative power lodged by the Jones Law (section 8), in thePhilippine Legislature and by the Constitution (section 1, Art. VI) in the NationalAssembly; and for the further reason that it gives the provincial boards, incontravention of the Constitution (section 2, Art. VIII) and the Jones Law (section28), the authority to enlarge the powers of the Courts of First Instance of thedifferent provinces without uniformity. In another supplementary petition datedSeptember 14, 1937, the Fiscal of the City of Manila, in behalf of one of thepetitioners, the People of the Philippine Islands, concurs for the first time withthe issues raised by the other petitioner regarding the constitutionality of Act No.4221, and in the oral argument held on October 6, 1937, further elaborated onthe theory that probation is a form of reprieve and therefore Act No. 4221 is anencroachment on the exclusive power of the Chief Executive to grant pardonsand reprieves. On October 7, 1937, the City Fiscal filed two memorandums inwhich he contended that Act No. 4221 not only encroaches upon the pardoningpower of the executive, but also constitutes an unwarranted delegation of legislative power and a denial of the equal protection of the laws. On October 9,1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People, of the Philippine Islands, and by counselfor the other petitioner, the Hongkong and Shanghai Banking Corporation, onesustaining the power of the state to impugn the validity of its own laws and theother contending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was filed by thesame persons on the same day, October 9, 1937, alleging that Act No. 4221 isunconstitutional because it denies the equal protection of the laws andconstitutes an unlawful delegation of legislative power and, further, that thewhole Act is void; that the Commonwealth is not estopped from questioning thevalidity of its laws; that the private prosecution may intervene in probation



proceedings and may attack the probation law as unconstitutional; and that thiscourt may pass upon the constitutional question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oralargument and memorandums, challenge each and every one of the foregoingproposition 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 soughtby the petitioners is the very same remedy prayed for by them before the trialcourt and was still pending resolution before the trial court when the presentpetition was filed with this court.

(3) That the petitioners having themselves raised the question as to theexecution of judgment before the trial court, said trial court has acquiredexclusive jurisdiction to resolve the same under the theory that its resolutiondenying probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdictionwith the Court of First Instance to decide the question as to whether or notexecution will lie, this court nevertheless cannot exercise said jurisdiction whilethe Court of First Instance has assumed jurisdiction over the same upon motionof herein petitioners themselves.

(5) That the procedure followed by the herein petitioners in seeking todeprive the trial court of its jurisdiction over the case and elevate the proceedingsto this court, should not be tolerated because it impairs the authority and dignityof 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 presentaction would not lie because the resolution of the trial court denying probation isappealable; for although the Probation Law does not specifically provide that anapplicant for probation may appeal from a resolution of the Court of FirstInstance denying probation, still it is a general rule in this jurisdiction that a finalorder, resolution or decision of an inferior court is appealable to the superiorcourt.

(7) That the resolution of the trial court denying probation of herein

respondent Mariano Cu Unjieng being appealable, the same had not yet becomefinal and executory for the reason that the said respondent had filed analternative motion for reconsideration and new trial within the requisite periodof fifteen days, which motion the trial court was not able to resolve in view of therestraining order improvidently and erroneously issued by this court.

(8) That the Fiscal of the City of Manila had by implication admittedthat the resolution of the trial court denying probation is not final andunappealable when he presented his answer to the motion for reconsiderationand agreed to the postponement of the hearing of the said motion.



(9) That under the supposition that the order of the trial court denyingprobation is not appealable, it is incumbent upon the accused to file an action forthe issuance of the writ of certiorari with mandamus, it appearing that the trialcourt, although it believed that the accused was entitled to probation,nevertheless denied probation for fear of criticism because the accused is a richman; and that, before a petition for certiorari grounded on an irregular exerciseof jurisdiction by the trial court could lie, it is incumbent upon the petitioner tofile a motion for reconsideration specifying the error committed so that the trialcourt could have. an opportunity to correct or cure the same.

(10) That on the hypothesis that the resolution of the trial court is notappealable, the trial court retains its jurisdiction within a reasonable time tocorrect or modify it in accordance with law and justice; that this power to alter ormodify an order or resolution is inherent in the courts and may be exercisedeither motu proprio or upon petition of the proper party, the petition in the lattercase taking the form of a motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial court isappealable 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 doorsof probation would be closed from the moment the accused commences to servehis sentence (Act No. 4221, sec. 1; U. S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937, counsel for therespondents maintain that Act No. 4221 is constitutional because, contrary to theallegations of the petitioners, it does not constitute an undue delegation of legislative power, does not infringe the equal protection clause of theConstitution, and does not encroach upon the pardoning power of the Executive.In an additional memorandum filed on the same date, counsel for therespondents reiterate the view that section 11 of Act No. 4221 is free fromconstitutional objections and contend, in addition, that the private prosecutionmay not intervene in probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estoppedfrom questioning the validity of the Act; that the validity of the Act cannot beattacked for the first time before this court; that prohibition is unavailable; andthat, in any event, section 11 of Act No. 4221 is separable from the rest of theAct. The last memorandum for the respondent Mariano Cu Unjieng was deniedfor having been filed out of time but was admitted by resolution of this court andfiled anew on November 5, 1937. This memorandum elaborates on some of thepoints raised by the respondents and refutes those brought up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspect 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 saidapplication assumed the task not only of considering the merits of theapplication, but of passing upon the culpability of the applicant, notwithstandingthe final pronouncement of guilt by this court. (G. R. No. 41200.) Probationimplies guilt by final judgment. While a probation court hearing a probation casemay look into the circumstances attending the commission of the offense, this





years ago was, like the present one, an original action for certiorari andprohibition. The constitutionality of Act No. 2972, popularly known as theChinese Bookkeeping Law, was there challenged by the petitioners, and theconstitutional issue was met squarely by the respondents in a demurrer. A pointwas raised "relating to the propriety of the constitutional question being decidedin original proceedings in prohibition." This court decided to take up theconstitutional question and, with two justices dissenting, held that Act No. 2972was constitutional. The case was elevated on writ of certiorari to the SupremeCourt of the United States which reversed the judgment of this court and heldthat 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 prohibitionwith courts of first instance over inferior tribunals or persons, and original

jurisdiction over courts of first instance, when such courts are exercisingfunctions without or in excess of their jurisdiction. It has been held by thatCourt that the question of the validity of a criminal statute must usually beraised by a defendant in the trial court and be carried regularly in review tothe Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26Phil., 192.) But in this case where a new act seriously affected numerouspersons and extensive property rights, and was likely to cause a multiplicityof 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 orderlyadministration of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123; 52 Law. ed., 714; 13 L. R. A. [N. S.], 932; 28Sup. Ct. Rep., 441; 14 Ann. Cas., 764; Traux vs. Raich, 239 U. S., 33, 60Law. 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 tothe jurisdiction was raised by demurrer to the petition, this is now disclaimedon 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 IslandCode, we acquiesce in the desire of the parties."

The writ of prohibition is an extraordinary judicial writ issuing out of a courtof superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is notlegally vested.) (High, Extraordinary Legal Remedies, p. 705.) The general rule,although there is a conflict in the cases, is that the writ of prohibition will not lie

where the inferior court has jurisdiction independent of the statute theconstitutionality of which is questioned, because in such cases the inferior courthaving jurisdiction may itself determine the constitutionality of the statute, andits decision may be subject to review, and consequently the complainant in suchcases 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 re Macfarland. 30 App. [D. C.], 365; Curtis vs. Cornish[1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13;



State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837],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 theprocedure for granting probation to accused persons after their conviction hasbecome final and before they have served their sentence. It is true that atcommon law the authority of the courts to suspend temporarily the execution of

a sentence is recognized and, according to a number of state courts, includingthose of Massachusetts, Michigan, New York, and Ohio, the power is inherent inthe courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; Peoplevs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs.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 underthe 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 punishmentprovided by law is judicial, and it is equally to be conceded that, in exertingthe powers vested in them on such subject, courts inherently possessample right to exercise reasonable, that is, judicial, discretion to enable themto wisely exert their authority. But these concessions afford no ground forthe contention as to power here made, since it must rest upon theproposition that the power to enforce begets inherently a discretion topermanently refuse to do so. And the effect of the proposition urged upon

the distribution of powers made by the Constitution will become apparentwhen it is observed that indisputable also is it that the authority to defineand fix the punishment for crime is legislative and includes the right inadvance to bring within judicial discretion, for the purpose of executing thestatute, elements of consideration which would be otherwise beyond thescope of judicial authority, and that the right to relieve from the punishment,fixed by law and ascertained according to the methods by it providedbelongs 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 thiscourt in 1915, also reached the conclusion that the power to suspend theexecution of sentences pronounced in criminal cases is not inherent in the

judicial function. "All are agreed", he said, "that in the absence of statutoryauthority, it does not lie within the power of the courts to grant suchsuspensions." (at p. 278.) Both petitioners and respondents are correct, therefore,when they argue that a Court of First Instance sitting in probation proceedings isa court of limited jurisdiction. Its jurisdiction in such proceedings is conferredexclusively 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 beenproperly 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], 260Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that theconstitutional issue has been squarely presented not only before this court by thepetitioners but also before the trial court by the private prosecution. Therespondent, 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, notbeing a party whose rights are affected by the statute, may not raise saidquestion. The respondent judge cited Cooley on Constitutional Limitations (Vol. I,p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition thata court will not consider any attack made on the constitutionality of a statute byone who has no interest in defeating it because his rights are not affected by itsoperation. The respondent judge further stated that it may not motu proprio takeup the constitutional question and, agreeing with Cooley that "the power todeclare a legislative enactment void is one which the judge, conscious of thefallibility of the human judgment, will shrink from exercising in any case wherehe can conscientiously and with due regard to duty and official oath decline theresponsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded onthe assumption that Act No. 4221 is constitutional. While, therefore, the court a quo admits that the constitutional question was raised before it, it refused toconsider the question solely because it was not raised by a proper party.Respondents herein reiterate this view. The argument is advanced that theprivate prosecution has no personality to appear in the hearing of the applicationfor probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of theCourt of First Instance of Manila, and hence the issue of constitutionality was notproperly raised in the lower court. Although, as a general rule, only those whoare 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 courtwithout jurisdiction is void, where the jurisdiction of the court depends on thevalidity of the statute in question, the issue of constitutionality will be consideredon its being brought to the attention of the court by persons interested in theeffect to be given the statute. (12 C. J., sec. 184, p. 766.) And, even if we were toconcede that the issue was not properly raised in the court below by the properparty, it does not follow that the issue may not be here raised in an originalaction 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 notraised by the pleadings, ordinarily it may not be raised at the trial, and if notraised 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 theexercise of sound discretion, may determine the time when a question affectingthe constitutionality of a statute should be presented. (In re Woolsey [1884], 95N. 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 anystage 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 theconstitutional question, though raised for the first time on appeal, if it appearsthat 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 ithas been held that a constitutional question will be considered by an appellatecourt 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 considerthe constitutional question raised for the first time before this court in theseproceedings, we turn again and point with emphasis to the case of Yu Cong Engvs. Trinidad, supra . And on the hypothesis that the Hongkong & ShanghaiBanking Corporation, represented by the private prosecution, is not the properparty to raise the constitutional question here — a point we do not now have todecide — we are of the opinion that the People of the Philippines, represented bythe Solicitor-General and the Fiscal of the City of Manila, is such a proper party inthe present proceedings. The unchallenged rule is that the person who impugnsthe validity of a statute must have a personal and substantial interest in the casesuch that he has sustained, or will sustain, direct injury as a result of itsenforcement. It goes without saying that if Act No. 4221 really violates theConstitution, the People of the Philippines, in whose name the present action isbrought, has a substantial interest in having it set aside. Of greater import thanthe damage caused by the illegal expenditure of public funds is the mortal woundinflicted upon the fundamental law by the enforcement of an invalid statute.Hence, the well-settled rule that the state can challenge the validity of its ownlaws. 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 legislatureunconstitutional in an action instituted in behalf of the Government of thePhilippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41N. W. 426, 428, 429), the State of Michigan, through its Attorney General,instituted quo warranto proceedings to test the right of the respondents to renewa mining corporation, alleging that the statute under which the respondents basetheir right was unconstitutional because it impaired the obligation of contracts.

The capacity of the chief law officer of the state to question the constitutionalityof the statute was itself questioned. Said the Supreme Court of Michigan,through Champlin, J.:

". . . The idea seems to be that the people are estopped fromquestioning the validity of a law enacted by their representatives; that to anaccusation by the people of Michigan of usurpation upon their government,a statute enacted by the people of Michigan is an adequate answer. The lastproposition is true, but, if the statute relied on in justification isunconstitutional, it is a statute only in form, and lacks the force of law, and isof no more saving effect to justify action under it than if it had never beenenacted. The constitution is the supreme law, and to its behests the courts,the legislature, and the people must bow. . . . The legislature and therespondents are not the only parties in interest upon such constitutionalquestions. As was remarked by Mr. Justice Story, in speaking of an



acquiescence by a party affected by an unconstitutional act of thelegislature: 'The people have a deep and vested interest in maintaining all theconstitutional 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 originalaction (mandamus) was brought by the Attorney-General of Kansas to test theconstitutionality of a statute of the state. In disposing of the question whether ornot the state may bring the action, the Supreme Court of Kansas said:

". . . The state is a proper party — indeed, the proper party — to bringthis action. The state is always interested where the integrity of itsConstitution or statutes is involved.

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

"Where the constitutionality of a statute is in doubt the state's lawofficer, its Attorney-General, or county attorney, may exercise his best

judgment as to what sort of action he will bring to have the matterdetermined, either by quo warranto to challenge its validity (State vs.

Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L. R. A., 662), by mandamus tocompel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac.,846), or by injunction to restrain proceedings under its questionableprovisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac.,122)."

Other courts have reached the same conclusion (See State vs. St. Louis S.W. Ry. Co. [1917], 197 S. W., 1006; State vs. S. H. Kress & Co. [1934], 155 S.,823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of

County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State[1917], 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 thecase last cited, the Supreme Court of Louisiana said:

"It is contended by counsel for Herbert Watkins that a districtattorney, being charged with the duty of enforcing the laws, has no right toplead that a law is unconstitutional. In support of the argument, threedecisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of

Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs.Shakespeare, Mayor of New Orleans (41 La. Ann., 156; 6 So., 592); andState ex rel. Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So.,746; 47 L. R. A., 512). These decisions do not forbid a district attorney toplead that a statute is unconstitutional if he finds it in conflict with one whichit 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 acertain statute to be unconstitutional, forbid the district attorney to file a billof information charging a person with a violation of the statute. In otherwords, a judge should not judicially declare a statute unconstitutional untilthe 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 anofficer on whom a statute imposes the duty of enforcing its provisionscannot avoid the duty upon the ground that he considers the statuteunconstitutional, and hence in enforcing the statute he is immune fromresponsibility if the statute be unconstitutional. State ex rel. Banking Co.,etc., is authority for the proposition merely that executive officers, e. g., thestate auditor and state treasurer, should not decline to perform ministerial

duties imposed upon them by a statute, on the ground that they believe thestatute is unconstitutional.

"It is the duty of a district attorney to enforce the criminal laws of thestate, and, above all, to support the Constitution of the state. If, in theperformance of his duty he finds two statutes in conflict with each other, orone which repeals another, and if, in his judgment, one of the two statutes isunconstitutional, 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 thestatutes is unconstitutional. If it were not so, the power of the Legislaturewould 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 havenot cited any authority running clearly in the opposite direction. In fact, theyappear to have proceeded on the assumption that the rule as stated is sound butthat it has no application in the present case, nor may it be invoked by the CityFiscal in behalf of the People of the Philippines, one of the petitioners herein, theprincipal reasons being that the validity of the Probation Act cannot be attackedfor the first time before this court, that the City Fiscal is estopped from attackingthe 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 outsidesaid 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 thepast 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 asconstitutional, is no reason for considering the People of the Philippines estoppedfrom now assailing its validity. For courts will pass upon a constitutional questiononly 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 toallow it to be raised later. The fiscal and all others are justified in relying uponthe statute and treating it as valid until it is held void by the courts in propercases.

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 thecourt will meet the question with firmness, where its decision is indispensable, itis the part of wisdom, and a just respect for the legislature, renders it proper, towaive 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 aconstitutional question is necessary whenever it is essential to the decision of thecase (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. WisconsinR. Comm., 146 Wis., 523; 129 N. W., 605), as where the right of a party isfounded 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; Cheneyvs. Beverly, 188 Mass., 81; 74 N. E., 306). There is no doubt that the respondentCu Unjieng draws his privilege to probation solely from Act No. 4221 now beingassailed.

Apart from the foregoing considerations, this court will also take cognizanceof the fact that the Probation Act is a new addition to our statute books and itsvalidity has never before been passed upon by the courts; that many personsaccused 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 MarianoCu Unjieng has been at large for a period of about four years since his firstconviction. All await the decision of this court on the constitutional question.Considering, therefore, the importance which the instant case has assumed andto prevent multiplicity of suits, strong reasons of public policy demand that theconstitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad[1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059. See 6 R. C. L.,pp. 77, 78; People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442, 444; Ann.Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N. W., 209,211; 37 L. R. A. [N. S.], 489; Dimayuga and Fajardo vs. Fernandez [1922], 43

Phil., 304.) In Yu Cong Eng vs. Trinidad, supra , an analogous situation confrontedus. We said: "Inasmuch as the property and personal rights of nearly twelvethousand 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 publicwelfare and for the advancement of public policy, we have determined tooverrule the defense of want of jurisdiction in order that we may decide the mainissue. We have here an extraordinary situation which calls for a relaxation of thegeneral rule." Our ruling on this point was sustained by the Supreme Court of theUnited States. A more binding authority in support of the view we have takencan not be found.

We have reached the conclusion that the question of the constitutionalityof Act No. 4221 has been properly raised. Now for the main inquiry: Is the Actunconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by clear implication from theprovisions of section 2, subsection 1, and section 10, of Article VIII of theConstitution, may declare an act of the national legislature invalid because inconflict with the fundamental law. It will not shirk from its sworn duty to enforcethe 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 theessence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of thisnature that all reasonable doubts should be resolved in favor of theconstitutionality 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 thelegislative department of the government itself." (U. S. vs. Ten Yu [1912], 24Phil., 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 courtssustained by the sanction of the executive. The members of the Legislature andthe Chief Executive have taken an oath to support the Constitution and it mustbe presumed that they have been true to this oath and that in enacting andsanctioning a particular law they did not intend to violate the Constitution. Thecourts cannot but cautiously exercise its power to overturn the solemndeclarations 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 electiveLegislature and an elective Chief Executive. It follows, therefore, that the courtswill not set aside a law as violative of the Constitution except in a clear case. Thisis a proposition too plain to require a citation of authorities.

One of the counsel for respondents, in the course of his impassionedargument, called attention to the fact that the President of the Philippines hadalready expressed his opinion against the constitutionality of the Probation Act,adverting that as to the Executive the resolution of this question was a foregoneconclusion. Counsel, however, reiterated his confidence in the integrity and

independence of this court. We take notice of the fact that the President in hismessage dated September 1, 1937, recommended to the National Assembly theimmediate repeal of the Probation Act (No. 4221); that this message resulted inthe approval of Bill No. 2417 of the National Assembly repealing the ProbationAct, subject to certain conditions therein mentioned; but that said bill was vetoedby the President on September 13, 1937, much against his wish, "to havestricken out from the statute books of the Commonwealth a law . . . unfair andvery likely unconstitutional." It is sufficient to observe in this connection that, invetoing the bill referred to, the President exercised his constitutional prerogative.He may express the reasons which he may deem proper for taking such a step,

but his reasons are not binding upon us in the determination of actualcontroversies submitted for our determination. Whether or not the Executiveshould express or in any manner insinuate his opinion on a matter encompassedwithin his broad constitutional power of veto but which happens to be at thesame time pending determination in this court is a question of propriety for himexclusively to decide or determine. Whatever opinion is expressed by him underthese circumstances, however, cannot sway our judgment one way or anotherand prevent us from taking what in our opinion is the proper course of action totake in a given case. If it is ever necessary for us to make any vehementaffirmance 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 ourgovernment — independent in the performance of our functions, undeterred byany consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as weunderstand it.

The constitutionality of Act No. 4221 is challenged on three principal

grounds: (1) That said Act encroaches upon the pardoning power of theExecutive; (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, commonlyknown 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 thePhilippines "the exclusive power to grant pardons and reprieves and remit finesand 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 Constitutiondiffer in some respects. The adjective "exclusive" found in the Jones Law hasbeen omitted from the Constitution. Under the Jones Law, as at common law,pardon could be granted any time after the commission of the offense, eitherbefore or after conviction (Vide Constitution of the United States, Art. II, sec. 2; Inre Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines wasthus empowered, like the President of the United States, to pardon a personbefore the facts of the case were fully brought to light. The framers of ourConstitution thought this undesirable and, following most of the stateconstitutions, provided that the pardoning power can only be exercised "afterconviction". So, too, under the new Constitution, the pardoning power does notextend to "cases of impeachment". This is also the rule generally followed in theUnited States (Vide Constitution of the United States, Art. II, sec. 2). The rule inEngland is different. There, a royal pardon can not be pleaded in bar of animpeachment; "but," says Blackstone, "after the impeachment has beensolemnly heard and determined, it is not understood that the king's royal grace isfurther restrained or abridged." (Vide , Ex parte Wells [1856], 18 How., 307; 15Law. 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 forthe distinction is obvious. In England, judgment on impeachment is not confinedto 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 thePhilippines) but extends to the whole punishment attached by law to the offensecommitted. The House of Lords, on a conviction may, by its sentence, inflictcapital punishment, perpetual banishment, fine or imprisonment, dependingupon the gravity of the offense committed, together with removal from officeand incapacity to hold office. (Com. vs. Lockwood, supra .) Our Constitution alsomakes specific mention of "commutation" and of the power of the executive toimpose, in the pardons he may grant, such conditions, restrictions and limitationsas he may deem proper. Amnesty may be granted by the President under theConstitution but only with the concurrence of the National Assembly. We need



not dwell at length on the significance of these fundamental changes. It issufficient for our purposes to state that the pardoning power has remainedessentially 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 inthe Chief Executive. The exercise of the power may not, therefore, be vested inanyone else. ". . . The benign prerogative of mercy reposed in the executive

cannot be taken away nor fettered by any legislative restrictions, nor can likepower be given by the legislature to any other officer or authority. Thecoordinate departments of government have nothing to do with the pardoningpower, since no person properly belonging to one of the departments canexercise any powers appertaining to either of the others except in cases expresslyprovided 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 orimplied limitations, the grant is exclusive, and the legislature can neitherexercise such power itself nor delegate it elsewhere, nor interfere with or controlthe 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 reasonunconstitutional and void. But does it?

In the famous Killitts decision involving an embezzlement case, theSupreme Court of the United States ruled in 1916 that an order indefinitelysuspending sentence was void. (Ex parte United States [1916], 242 U. S., 27; 61Law. ed., 129; L. R. A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.)Chief Justice White, after an exhaustive review of the authorities, expressed theopinion of the court that under the common law the power of the court waslimited to temporary suspension and that the right to suspend sentenceabsolutely and permanently was vested in the executive branch of the

government and not in the judiciary. But, the right of Congress to establishprobation by statute was conceded. Said the court through its Chief Justice: ". . .and so far as the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means asthe legislative mind may devise, to such judicial discretion as may be adequate toenable courts to meet by the exercise of an enlarged but wise discretion theinfinite variations which may be presented to them for judgment, recourse mustbe had to Congress whose legislative power on the subject is in the very natureof 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 actionwas finally taken on March 4, 1925 (chap. 521, 43 Stat. at L. 1259, U. S. C. title18, sec. 724). This was followed by an appropriation to defray the salaries andexpenses 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 hasbegun 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 sentencewas 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 thehistory of the Act and quoted from the report of the Committee on the Judiciaryof 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 sentenceor by placing the defendants under state probation officers or volunteers. Inthis 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), theSupreme Court denied the right of the district courts to suspend sentence.In the same opinion the court pointed out the necessity for action byCongress if the courts were to exercise probation powers in the future. . . .

"Since this decision was rendered, two attempts have been made toenact probation legislation. In 1917, a bill was favorably reported by the

Judiciary Committee and passed the House. In 1920, the Judiciary Committeeagain favorably reported a probation bill to the House, but it was neverreached for definite action.

"If this bill is enacted into law, it will bring the policy of the Federalgovernment with reference to its treatment of those convicted of violationsof its criminal laws in harmony with that of the states of the Union. At thepresent time every state has a probation law, and in all but twelve states thelaw 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 byinferior federal courts. In Riggs vs. United States supra , the Circuit Court of

Appeals of the Fourth Circuit said:"Since the passage of the Probation Act of March 4, 1925, the

questions under consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of theact fully sustained, and the same held in no manner to encroach upon thepardoning power of the President. This case will be found to contain an ableand comprehensive review of the law applicable here. It arose under the actwe have to consider, and to it and the authorities cited therein specialreference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to adecision 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 requisitepower to enact probation laws, that a federal probation law was actually enactedin 1925, and that the constitutionality of the Act has been assumed by theSupreme Court of the United States in 1928 and consistently sustained by theinferior 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 fixthe 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 Legislatureto denominate and define all classes of crime, and to prescribe for each aminimum 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 theexercise of this power the general assembly may confer on trial judges, if it seesfit, the largest discretion as to the sentence to be imposed, as to the beginningand end of the punishment and whether it should be certain or indeterminate orconditional." (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 penaltiesfor their violation. Invariably, the legislature has demonstrated the desire to vestin the courts — particularly the trial courts — large discretion in imposing thepenalties which the law prescribes in particular cases. It is believed that justicecan best be served by vesting this power in the courts, they being in a position tobest determine the penalties which an individual convict, peculiarlycircumstanced, should suffer. Thus, while courts are not allowed to refrain fromimposing a sentence merely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law isclearly excessive, the courts being allowed in such cases to submit to the Chief Executive, through the Department of Justice, such statement as it may deemproper (see art. 5, Revised Penal Code), in cases where both mitigating andaggravating circumstances are attendant in the commission of a crime and thelaw provides for a penalty composed of two indivisible penalties, the courts mayallow such circumstances to offset one another in consideration of their numberand importance, and to apply the penalty according to the result of suchcompensation. (Art. 63, rule 4, Revised Penal Code; U. S. vs. Reguera andAsuategui [1921], 41 Phil., 506.) Again, Article 64, paragraph 7, of the RevisedPenal 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 thepenalty according to the number and nature of the aggravating and mitigatingcircumstances and the extent of the evil produced by the crime. In the impositionof fines, the courts are allowed to fix any amount within the limits established bylaw, considering not only the mitigating and aggravating circumstances, butmore particularly the wealth or means of the culprit. (Art. 66, Revised PenalCode.) Article 68, paragraph 1, of the same Code provides that "a discretionarypenalty 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 atleast than that prescribed by law for the crime which he has committed. Article69 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 someof the conditions required to justify the same or to exempt from criminal liabilityin the several cases mentioned in articles 11 and 12 of the Code, "the courts shallimpose the penalty in the period which may be deemed proper, in view of thenumber and nature of the conditions of exemption present or lacking." And, incase 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 200to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventiveimprisonment is deducted from the entire term of imprisonment, except incertain cases expressly mentioned (art. 29); the death penalty is not imposedwhen the guilty person is more than seventy years of age, or where upon appeal

or revision of the case by the Supreme Court, all the members thereof are notunanimous in their voting as to the propriety of the imposition of the deathpenalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended byCommonwealth Act No. 3); the death sentence is not to be inflicted upon awoman within the three years next following the date of the sentence or whileshe is pregnant, or upon any person over seventy years of age (art. 83); andwhen a convict shall become insane or an imbecile after final sentence has beenpronounced, or while he is serving his sentence, the execution of said sentenceshall be suspended with regard to the personal penalty during the period of suchinsanity or imbecility (art. 79).

But the desire of the legislature to relax what might result in the undueharshness of the penal laws is more clearly demonstrated in various otherenactments, including the probation Act. There is the Indeterminate SentenceLaw enacted in 1933 as Act No. 4103 and subsequently amended by Act No.4225, establishing a system of parole (secs. 5 to 10) and granting the courtslarge discretion in imposing the penalties of the law. Section 1 of the law asamended provides: "Hereafter, in imposing a prison sentence for an offensepunished by the Revised Penal Code, or its amendments, the court shall sentencethe accused to an indeterminate sentence the maximum term of which shall bethat which, in view of the attending circumstances, could be properly imposedunder the rules of the said Code, and to a minimum which shall be within therange 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 theaccused to an indeterminate sentence, the maximum term of which shall notexceed the maximum fixed by said law and the minimum shall not be less thanthe minimum term prescribed by the same." Certain classes of convicts are, bysection 2 of the law, excluded from the operation thereof. The Legislature hasalso enacted the Juvenile Delinquency Law (Act No. 3203) which wassubsequently amended by Act No. 3559. Section 7 of the original Act and section1 of the amendatory Act have become article 80 of the Revised Penal Code,amended by Act No. 4117 of the Philippine Legislature and recently reamendedby 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 thelegislature to "humanize" the penal laws. It allows, in effect, the modification inparticular cases of the penalties prescribed by law by permitting the suspensionof the execution of the judgment in the discretion of the trial court, after duehearing and after Investigation of the particular circumstances of the offense, thecriminal record, if any, of the convict, and his social history. The Legislature has inreality 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 comes in conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the languageof the Supreme Court of New Mexico, "the element of punishment or the penaltyfor the commission of a wrong, while to be declared by the courts as a judicialfunction under and within the limits of law as announced by legislative acts,concerns solely the procedure and conduct of criminal causes, with which theexecutive 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 todelegate to the courts the pardoning power lodged by the constitution in thegovernor of the state and observed that "while the governor alone is vested withthe power to pardon after final sentence has been imposed by the courts, thepower of the courts to impose any penalty which may be from time to timeprescribed by law and in such manner as may be defined cannot be questioned."

We realize, of course, the conflict which the American cases disclose. Somecases hold it unlawful 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 wouldencroach upon the pardoning power of the executive. ( In re Webb [1895], 89Wis., 354; 27 L. R. A., 356; 46 Am. St. Rep., 846; 62 N. W., 177; 9 Am. Crim.Rep., 702; 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 Ill., 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., 190; 69 Am. St. Rep., 175; 30 S. E., 858;

State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; Peoplevs. 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. UnitedStates [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. State [1926], 171 Ark., 620;286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte DeVoe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118Cal., 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 Ill., 443; 100N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A.,859; St. Hilarie, Petitioner [1906], 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; 136A., 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 followthis long catena of authorities holding that the courts may be legally authorizedby the legislature to suspend sentence by the establishment of a system of probation however characterized. State ex rel. Tingstad vs. Starwich ([1922], 119Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In thatcase, a statute enacted in 1921 which provided for the suspension of theexecution of a sentence until otherwise ordered by the court, and required thatthe convicted person be placed under the charge of a parole or peace officerduring 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 theconstitutional provision vesting the pardoning power in the chief executive of thestate. (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. InPeople 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 reprievesand pardons, as understood when the constitution was adopted, are totallydistinct and different in their origin and nature. The former was always a partof the judicial power; the latter was always a part of the executive power.

The suspension of the sentence simply postpones the judgment of the courttemporarily or indefinitely, but the conviction and liability following it, and all

civil disabilities, remain and become operative when judgment is rendered. Apardon reaches both the punishment prescribed for the offense and theguilt of the offender. It releases the punishment, and blots out of existencethe guilt, so that in the eye of the law, the offender is as innocent as if hehad never committed the offense. It removes the penalties and disabilities,and restores him to all 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 perfectlyfamiliar with the principles governing the power to grant pardons, and it wasconferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words of the constitution were used toexpress the authority formerly exercised by the English crown, or by itsrepresentatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15Law. ed., 421.) As this power was understood, it did not comprehend anypart of the judicial functions to suspend sentence, and it was never intended

that the authority to grant reprieves and pardons should abrogate, or in anydegree restrict, the exercise of that power in regard to its own judgments,that criminal courts had so long maintained. The two powers, so distinct anddifferent in their nature and character, were still left separate and distinct,the one to be exercised by the executive, and the other by the judicialdepartment. We therefore conclude that a statute which, in terms,authorizes courts of criminal jurisdiction to suspend sentence in certaincases 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 bythe courts, is a valid exercise of legislative power under the constitution. Itdoes not encroach, in any just sense, upon the powers of the executive, asthey have been understood and practiced from the earliest times." (Quotedwith 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 entirepunishment which the law inflicts. Under the Probation Act, the probationer'scase is not terminated by the mere fact that he is placed on probation. Section 4of the Act provides that the probation may be definitely terminated and the

probationer finally discharged from supervision only after the period of probationshall have been terminated and the probation officer shall have submitted areport, and the court shall have found that the probationer has complied with theconditions 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 conditionsof probation and, when rearrested, may be committed to prison to serve thesentence 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 completeliberty, 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 imprisonmentand fine prescribed by the criminal laws. For this reason its application is aspurely a judicial act as any other sentence carrying out the law deemedapplicable to the offense. The executive act of pardon, on the contrary, isagainst the criminal law, which binds and directs the judges, or rather isoutside 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 fromcommutation of the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep.,



615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly bythe petitioners as authority in support of their contention that the power to grantpardons and reprieves, having been vested exclusively upon the Chief Executiveby the Jones Law, may not be conferred by the legislature upon the courts bymeans 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 termsconferred on the district courts the power to grant pardons to persons convictedof crime, it also distinguished between suspension of sentence on the one hand,and reprieve and commutation of sentence on the other. Said the court, throughHarper, J .:

"That the power to suspend the sentence does not conflict with thepower of the Governor to grant reprieves is settled by the decisions of thevarious courts; it being held that the distinction between a 'reprieve' and asuspension of sentence is that a reprieve postpones the execution of thesentence 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; 40N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This lawcannot be held in conflict with the power confiding in the Governor to grantcommutations of punishment, for commutation is but to change thepunishment assessed to a less punishment."

In State ex rel. Bottomly vs. District Court ([1925], 73 Mont., 541; 237Pac., 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 sections12078—12086, Revised Codes of 1921. The court held the law valid as notimpinging upon the pardoning power of the executive. In a unanimous decisionpenned 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 oneof them was intended to comprehend the suspension of the execution of a

judgment as that phrase is employed in sections 12078- 12086. A 'pardon' isan act of grace, proceeding from the power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from thepunishment 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; asubstitution 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 foran interval of time (4 Blackstone's Commentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporarysuspension of execution (Butler vs. State, 97 Ind., 373).

"Few adjudicated cases are to be found in which the validity of astatute similar to our section 12078 has been determined; but the sameobjections have been urged against parole statutes which vest the power toparole in persons other than those to whom the power of pardon is



granted, and these statutes have been upheld quite uniformly, as areference to the numerous cases cited in the notes to Woods vs. State (130

Tenn., 100; 169 S. W., 558, reported in L. R. A., 1915F, 531), will disclose.(See, also, 20 R. C. L., 524.)"

We conclude that the Probation Act does not conflict with the pardoningpower of the Executive. The pardoning power, in respect to those serving theirprobationary sentences, remains as full and complete as if the Probation Law hadnever been enacted. The President may yet pardon the probationer and thusplace 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 legislature power?

Under our constitutional system, the powers of government are distributedamong three coordinate and substantially independent organs: the legislative,the executive and the judicial. Each of these departments of the governmentderives its authority from the Constitution which, in turn, is the highest

expression of popular will. Each has exclusive cognizance of the matters withinits jurisdiction, and is supreme within its own sphere.

The power to make laws — the legislative power — is vested in a bicameralLegislature by the Jones Law (sec. 12) and in a unicameral National Assembly bythe Constitution (Art. VI, sec. 1, Constitution of the Philippines). The PhilippineLegislature or the National Assembly may not escape its duties andresponsibilities by delegating that power to any other body or authority. Anyattempt to abdicate the power is unconstitutional and void, on the principle thatpotestas delegata non delegare potest . This principle is said to have originatedwith the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of agency, was established by Lord Cokein 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. Ithas 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 inthe following oft-quoted language: "One of the settled maxims in constitutional

law is, that the power conferred upon the legislature to make laws cannot bedelegated by that department to any other body or authority. Where thesovereign power of the state has located the authority, there it must remain; andby the constitutional agency alone the laws must be made until the Constitutionitself is changed. The power to whose judgment, wisdom, and patriotism thishigh prerogative has been intrusted cannot relieve itself of the responsibility bychoosing other agencies upon which the power shall be devolved, nor can itsubstitute the judgment, wisdom, and patriotism of any other body for those towhich alone the people have seen fit to confide this sovereign trust." (Cooley onConstitutional 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 ethicalprinciple that such a delegated power constitutes not only a right but a duty to beperformed by the delegate by the instrumentality of his own judgment actingimmediately upon the matter of legislation and not through the interveningmind 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 byimmemorial practice permits the central legislative body to delegate legislativepowers 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 localaffairs shall be managed by local authorities, and general affairs by the centralauthority; and hence while the rule is also fundamental that the power to makelaws 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 theauthority to prescribe local regulations, according to immemorial practice, subjectof course to the interposition of the superior in cases of necessity." (Stoutenburghvs. Hennick, supra.) On quite the same principle, Congress is empowered todelegate legislative power to such agencies in the territories of the United Statesas it may select. A territory stands in the same relation to Congress as amunicipality 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; Dorrvs. 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 (12C. 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 whetheror not a state has ceased to be republican in form because of its adoption of theinitiative and referendum has been held not to be a judicial but a politicalquestion (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 hasbeen looked upon with favor by certain progressive courts, the sting of thedecisions of the more conservative courts has been pretty well drawn. (Opinionsof the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs.

Portland [1910], 57 Ore., 454; 111 Pac., 379; 112 Pac., 602; 37 L. R. A. [N. S.],332; Pacific States Tel. & Tel. Co. vs. Oregon, supra .) Doubtless, also, legislativepower may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines provides that "The NationalAssembly may by law authorize the President, subject to such limitations andrestrictions as it may impose, to fix within specified limits, tariff rates, import orexport quotas, and tonnage and wharfage dues." And section 16 of the samearticle of the Constitution provides that "In times of war or other nationalemergency, the National Assembly may by law authorize the President, for alimited 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 thescope of this decision to determine whether or not, in the absence of theforegoing constitutional provisions, the President could be authorized to exercisethe powers thereby vested in him. Upon the other hand, whatever doubt mayhave existed has been removed by the Constitution itself.

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

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 sale of a probation officer at ratesnot lower than those now provided for provincial fiscals. Said probationofficers shall be appointed by the Secretary of Justice and shall be subject tothe direction of the Probation Office." (Italics ours.)

In testing whether a statute constitutes an undue delegation of legislativepower or not, it is usual to inquire whether the statute was complete in all itsterms and provisions when it left the hands of the legislature so that nothing wasleft 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 courtadhered to the foregoing rule when it held an act of the legislature void in so faras it undertook to authorize the Governor-General, in his discretion, to issue aproclamation fixing the price of rice and to make the sale of it in violation of theproclamation a crime. (See and cf. Compañia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, islimited by another rule that to a certain extent matters of detail may be left tobe filled in by rules and regulations to be adopted or promulgated by executiveofficers and administrative boards. (6 R. C. L., pp. 177-179.)

For the purposes of the Probation Act, the provincial boards may beregarded as administrative bodies endowed with power to determine when theAct should take effect in their respective provinces. They are the agents ordelegates of the legislature in this respect. The rules governing delegation of legislative power to administrative and executive officers are applicable or are atleast indicative of the rule which should be here adopted. An examination of avariety of cases on delegation of power to administrative bodies will show thatthe ratio decidendi is at variance but, it can be broadly asserted that the rationalerevolves around the presence or absence of a standard or rule of action — or thesufficiency 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 itis insufficient; and in still others that it is entirely lacking. As a rule, an act of thelegislature is incomplete and hence invalid if it does not lay down any rule ordefinite standard by which the administrative officer or board may be guided inthe exercise of the discretionary powers delegated to it. (See Schecter vs. UnitedStates [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 I ll., 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 theexercise 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. Theprobation Act does not, by the force of any of its provisions, fix and impose uponthe provincial boards any standard or guide in the exercise of their discretionarypower. What is granted, if we may use the language of Justice Cardozo in therecent case of Schecter, supra , is a "roving commission" which enables theprovincial boards to exercise arbitrary discretion. By section 11 of the Act, thelegislature does seemingly on its own authority extend the benefits of theProbation Act to the provinces but in reality leaves the entire matter for thevarious provincial boards to determine. In other words, the provincial boards of the various provinces are to determine for themselves, whether the ProbationLaw 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 aprovincial board does not wish to have the Act applied in its province, all that ithas to do is to decline to appropriate the needed amount for the salary of aprobation officer. The plain language of the Act is not susceptible of any otherinterpretation. This, to our minds, is a virtual surrender of legislative power tothe provincial boards.

"The true distinction", says Judge Ranney, "is between the delegationof power to make the law, which necessarily involves a discretion as to whatit shall be, and conferring an authority or discretion as to its execution, to beexercised under and in pursuance of the law. The first cannot be done; tothe 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 onStatutory Construction, sec. 68.) To the same effect are decisions of thiscourt in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919], 39 Phil., 660), andCruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this

court sustained the validity of a law conferring upon the Governor-Generalauthority to adjust provincial and municipal boundaries. In the second case,this court held it lawful for the legislature to direct non-Christian inhabitantsto take up their habitation on unoccupied lands to be selected by theprovincial governor and approved by the provincial board. In the third case,it was held proper for the legislature to vest in the Governor-Generalauthority to suspend or not, at his discretion, the prohibition of theimportation of foreign cattle, such prohibition to be raised "if the conditionsof the country make this advisable or if disease among foreign cattle hasceased 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 thesimple transference of details of execution or the promulgation by executive oradministrative officials of rules and regulations to carry into effect the provisionsof 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. ProvincialBoard of Mindoro [1919], 39 Phil., 660.)



It is contended, however, that a legislative act may be made to the effectas law after it leaves the hands of the legislature. It is true that laws may bemade effective on certain contingencies, as by proclamation of the executive orthe adoption by the people of a particular community (6 R. C. L., 116. 170-172;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 theUnited States ruled that the legislature may delegate a power not legislativewhich 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 factsis such a power which may be delegated. There is nothing essentially legislativein ascertaining the existence of facts or conditions as the basis of the taking intoeffect of a law. That is a mental process common to all branches of thegovernment. (Dowling vs. Lancashire Ins. Co., supra; In re Village of NorthMilwaukee [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; 12Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency,however, to relax the rule prohibiting delegation of legislative authority onaccount of the complexity arising from social and economic forces at work in thismodern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "TheMother 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 onConstitutional Limitations finds restatement in Prof. Willoughby's treatise on theConstitution of the United States in the following language — speaking of declaration of legislative power to administrative agencies: "The principle whichpermits the legislature to provide that the administrative agent may determinewhen the circumstances are such as require the application of a law is defendedupon the ground that at the time this authority is granted, the rule of publicpolicy, which is the essence of the legislative act, is determined by thelegislature. In other words, the legislature, as it is its duty to do, determines that,under given circumstances, certain executive or administrative action is to betaken, and that, under other circumstances, different or no action at all is to betaken. What is thus left to the administrative official is not the legislativedetermination 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 bywhich he is governed." (Willoughby on the Constitution of the United States, 2nded., Vol. III, 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 effectmay be left to such agencies as it may designate." (See, also, 12 C. 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 thehappening of future specified contingencies leaving to some other person or bodythe power to determine when the specified contingency has arisen. But, in thecase at bar, the legislature has not made the operation of the Probation Actcontingent 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 isabsolute and unlimited. A provincial board need not investigate conditions or findany fact, or await the happening of any specified contingency. It is bound by norule, — limited by no principle of expediency announced by the legislature. Itmay take into consideration certain facts or conditions; and, again, it may not. Itmay have any purpose or no purpose at all. It need not give any reason or haveany reason whatsoever for refusing or failing to appropriate any funds for thesalary 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 boardsmay appropriate funds for the salaries of probation officers and thus put the lawinto operation in the various provinces will not save the statute. The time of itstaking into effect, we reiterate, would yet be based solely upon the will of theprovincial 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 otherthan 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 respectiveprovinces. In some jurisdictions, constitutions provide that laws may besuspended 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 thisstate shall be exercised except by the legislature"; and section 26, article I of theConstitution of Indiana provides "That the operation of the laws shall never besuspended, except by authority of the General Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the legislature. Whileit may be undoubted that the legislature may suspend a law, or the execution oroperation 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, andcannot 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 constitutionof 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 thelegislature, or by authority derived from it, to be exercised in such particularcases only as the legislature shall expressly provide for. Many of the articlesin 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 andliberties of the kingdom; and the first of them is the assuming and exercisinga power of dispensing with and suspending the laws, and the execution of the laws without consent of parliament. The first article in the claim ordeclaration of rights contained in the statute is, that the exercise of suchpower, by regal authority without consent of parliament, is illegal. In thetenth section of the same statute it is further declared and enacted, that 'Nodispensation by non obstante of 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 herementioned; because, according to the theory of the English Constitution,'that absolute despotic power, which must in all governments residesomewhere,' is intrusted to the parliament: 1 Bl. Com., 160.

"The principles of our government are widely different in thisparticular. Here the sovereign and absolute power resides in the people; andthe legislature can only exercise what is delegated to them according to theconstitution. It is obvious that the exercise of the power in question would

be equally oppressive to the subject, and subversive of his right toprotection, 'according to standing laws,' whether exercised by one man orby a number of men. It cannot be supposed that the people when adoptingthis general principle from the English bill of rights and inserting it in ourconstitution, 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 andnatural justice, and to the spirit of our constitution and laws, that any onecitizen should enjoy privileges and advantages which are denied to all othersunder like circumstances; or that any one should be subject to losses,

damages, suits, or actions from which all others under like circumstancesare exempted."

To illustrate the principle: A section of a statute relative to dogs made theowner of any dog liable to the owner of domestic animals wounded by it for thedamages 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 notduring the current year their county should be governed by the provisions of theact of which that section constituted a part. It was held that the legislature couldnot confer that power. The court observed that it could no more confer such apower 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 inMissouri 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 systemcontained a provision that "if the county court of any county should be of opinionthat the provisions of the act should not be enforced, they might, in theirdiscretion, suspend the operation of the same for any specified length of time,and thereupon the act should become inoperative in such county for the periodspecified in such order; and thereupon order the roads to be opened and kept ingood 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 itis left to the county court to say which act shall be in force in their county. Theact does not submit the question to the county court as an original question, tobe decided by that tribunal, whether the act shall commence its operation withinthe county; but it became by its own terms a law in every county not exceptedby name in the act. It did not, then, require the county court to do any act inorder to give it effect. But being the law in the county, and having by itsprovisions superseded and abrogated the inconsistent provisions of previous laws,the county court is . . . empowered, to suspend this act and revive the repealedprovisions 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 thatthe power then to be exercised by the court is strictly legislative power, whichunder our constitution, cannot be delegated to that tribunal or to any other bodyof men in the state. In the present case, the question is not presented in theabstract; for the county court of Saline county, after the act had been for severalmonths in force in that county, did by order suspend its operation; and duringthat suspension the offense was committed which is the subject of the presentindictment . . .." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different fromthose applicable to other localities and, while recognizing the force of theprinciple hereinabove expressed, courts in many jurisdictions have sustained theconstitutionality 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 incharacter which should receive different treatment in different localities placedunder 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 seemsto us the impregnable ground, that the subject, though not embraced within theordinary powers of municipalities to make by-laws and ordinances, isnevertheless within the class of public regulations, in respect to which it is properthat 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-governmentand the propriety of leaving matters of purely local concern in the hands of localauthorities or for the people of small communities to pass upon, we believe thatin 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, thestatute does not expressly state that the provincial boards may suspend theoperation of the Probation Act in particular provinces but, considering that, inbeing vested with the authority to appropriate or not the necessary funds for thesalaries of probation officers, they thereby are given absolute discretion todetermine whether or not the law should take effect or operate in theirrespective provinces, the provincial boards are in reality empowered by thelegislature to suspend the operation of the Probation Act in particular provinces,the Act to be held in abeyance until the provincial boards should decide otherwiseby 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 thelegislature not only in the expression of what may be termed legislative policybut in the elaboration and execution thereof. "Without this power, legislationwould become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.)It has been said that popular government lives because of the inexhaustiblereservoir 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 expresslanguage of the instrument imposing the restraint, or by particular provisionswhich 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 alimitation of power and one of these time-honored limitations is that, subject tocertain exceptions, legislative power shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper andunlawful delegation of legislative authority to the provincial boards and is, forthis 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. III, sec. 1, subsec. 1, Constitution of the Philippines.)

This basic individual right sheltered by the Constitution is a restraint on allthe three grand departments of our government and on the subordinateinstrumentalities and subdivisions thereof, and on many constitutional powers,like the police power, taxation and eminent domain. The equal protection of thelaws, sententiously observes the Supreme Court of the United States, "is apledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S.,356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U.S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may beregarded as a denial of the equal protection of the laws is a question not alwayseasily 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 favoringothers is prohibited. But classification on a reasonable basis, and not madearbitrarily 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 reasonablemust be based on substantial distinctions which make real differences; it must begermane to the purposes of the law; it must not be limited to existing conditionsonly, 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; Lindsley vs.Natural Carbonic Gas Co. [1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough[1917], 242 U. S., 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; 17Ann. 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 flowfrom the unwarranted delegation of legislative power, although perhaps this isnot 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 provincemay 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 ProbationAct would be in operation in the former province but not in the latter. This meansthat a person otherwise coming within the purview of the law would be liable toenjoy the benefits of probation in one province while another person similarlysituated in another province would be denied those same benefits. This isobnoxious discrimination. Contrariwise, it is also possible for all the provincialboards to appropriate the necessary funds for the salaries of the probation officersin their respective provinces, in which case no inequality would result for theobvious reason that probation would be in operation in each and every provinceby the affirmative action of appropriation by all the provincial boards. On thathypothesis, every person coming within the purview of the Probation Act wouldbe entitled to avail of the benefits of the Act. Neither will there be any resultinginequality if no province, through its provincial board, should appropriate anyamount 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 municipalboard of said city has not made any appropriation for the salary of a probationofficer. These different situations suggested show, indeed, that while inequalitymay result in the application of the law and in the conferment of the benefitstherein provided, inequality is not in all cases the necessary result. But whatevermay be the case, it is clear that section 11 of the Probation Act creates a situationin which discrimination and inequality are permitted or allowed. There are, to besure, abundant authorities requiring actual denial of the equal protection of thelaw before courts should assume the task of setting aside a law vulnerable onthat score, but premises and circumstances considered, we are of the opinion thatsection 11 of Act No. 4221 permits of the denial of the equal protection of thelaw and is on that account bad. We see no difference between a law which deniesequal protection and a law which permits of such denial. A law may appear to befair on its face and impartial in appearance, yet, if it permits of unjust and illegaldiscrimination, it is within the constitutional prohibition. (By analogy, Chy Lungvs. 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 equalprotection 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.) Undersection 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 mayappropriate for the salary of a probation officer of a given year — and haveprobation during that year — and thereafter decline to make furtherappropriation, and have no probation in subsequent years. While this situationgoes rather to the abuse of discretion which delegation implies, it is hereindicated to show that the Probation Act sanctions a situation which is intolerablein a government of laws, and to prove how easy it is, under the Act, to make theguaranty 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 thatcase, 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 theequal 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 incriminal cases originally granted by General Orders No. 58. No question of legislative authority was involved and the alleged denial of the equal protectionof 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 section2 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 preliminaryexamination in any case where the prosecuting attorney, after a dueinvestigation of the facts . . . shall have presented an information against him in

proper form . . .." Upon the other hand, an analysis of the arguments and thedecision indicates that the investigation by the prosecuting attorney — althoughnot in the form had in the provinces — was considered a reasonable substitutefor the City of Manila, considering the peculiar conditions of the city as found andtaken into account by the legislature itself.

Reliance is also placed in the case of Missouri vs. Lewis, supra . That case hasreference to a situation where the constitution of Missouri permits appeals to theSupreme Court of the state from final judgments of any circuit court, exceptthose in certain counties for which counties the constitution establishes aseparate court of appeals called the St. Louis Court of Appeals. The provisioncomplained of, then, is found in the constitution itself and it is the constitutionthat makes the apportionment of territorial jurisdiction.

We are of the opinion that section 11 of the Probation Act isunconstitutional and void because it is also repugnant to the equal- protectionclause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for thereasons already stated, the next inquiry is whether or not the entire Act shouldbe avoided.

"In seeking the legislative intent, the presumption is against any



mutilation of a statute, and the courts will resort to elimination only where anunconstitutional provision is interjected into a statute otherwise valid, and isso independent and separable that its removal will leave the constitutionalfeatures and purposes of the act substantially unaffected by the process."(Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L.. R. 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 mustbe so far independent of the invalid portion that it is fair to presume that theLegislature would have enacted it by itself if they had supposed that theycould not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200Mass., 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 mustremain to make a complete, intelligible, and valid statute, which carries out

the legislative intent. (Pearson vs. Bass, 132 Ga., 117; 63 S. E., 798.) Thevoid provisions must be eliminated without causing results affecting themain purpose of the Act, in a manner contrary to the intention of theLegislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969;Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794;Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; Statevs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalidpart of a statute can have no legal force or efficacy for any purposewhatever, and what remains must express the legislative will, independentlyof 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 Actapplicable only in those provinces in which the respective provincial boards haveprovided for the salaries of probation officers were inoperative on constitutionalgrounds, the remainder of the Act would still be valid and may be enforced. Weshould 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 theelimination 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 deservingof the intended beneficial results of that system. The clear policy of the law, asmay be gleaned from a careful examination of the whole context, is to make theapplication of the system dependent entirely upon the affirmative action of thedifferent provincial boards through appropriation of the salaries for probationofficers at rates not lower than those provided for provincial fiscals. Without suchaction on the part of the various boards, no probation officers would be appointedby 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 theprovinces — and this is the actual situation how — appropriates the necessaryfund for the salary of a probation officer, probation under Act No. 4221 would beillusory. There can be no probation without a probation officer. Neither can therebe a probation officer without a probation system.

Section 2 of the Act provides that the probation officer shall supervise andvisit 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 probationofficers to see that the conditions which are imposed by the court upon theprobationer under his care are complied with. Among those conditions, thefollowing 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 harmfulcharacter;

"(c ) Shall report to the probation officer as directed by the courtor probation officers;

"(d ) Shall permit the probation officer to visit him at reasonabletimes 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 partiesfor 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 totime make; and

"(k ) Shall refrain from violating any law, statute, ordinance, or anyby-law or regulation, promulgated in accordance with law."

The court is required to notify the probation officer in writing of the periodand 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 thecourt that the probationer has complied with the conditions of probation thatprobation may be definitely terminated and the probationer finally discharged

from supervision. Under section 5, if the court finds that there is non-compliancewith said conditions, as reported by the probation officer, it may issue a warrantfor the arrest of the probationer and said probationer may be committed with orwithout bail. Upon arraignment and after an opportunity to be heard, the courtmay revoke, continue or modify the probation, and if revoked, the court shallorder the execution of the sentence originally imposed. Section 6 prescribes theduties of probation officers: "It shall be the duty of every probation officer tofurnish to all persons placed on probation under his supervision a statement of the period and conditions of their probation, and to instruct them concerning thesame; 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 mostsuitable, to bring about improvement in their conduct and condition; to report inwriting to the court having jurisdiction over said probationers at least once everytwo months concerning their conduct and condition; to keep records of theirwork; to make such reports as are necessary for the information of the Secretaryof Justice and as the latter may require; and to perform such other duties as areconsistent with the functions of the probation officer and as the court or judgemay direct. The probation officers provided for in this Act may act as paroleofficers for any penal or reformatory institution for adults when so requested bythe authorities thereof, and, when designated by the Secretary of Justice, shallact as parole officer of persons released on parole under Act Numbered Forty-oneHundred and Three, without any additional compensation."

It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10 of the Act which provides asfollows:

"There is hereby created in the Department of Justice and subject toits supervision and control, a Probation Office under the direction of a Chief Probation Officer to be appointed by the Governor-General with the adviseand consent of the Senate who shall receive a salary of four thousand eighthundred pesos per annum. To carry out the purposes of this Act, there ishereby appropriated out of any funds in the Insular Treasury not otherwiseappropriated, the sum of fifty thousand pesos to be disbursed by theSecretary of Justice, who is hereby authorized to appoint probation officersand the administrative personnel of the probation office under civil serviceregulations from among those who possess the qualifications, training and

experience prescribed by the Bureau of Civil Service, and shall fix thecompensation of such probation officers and administrative personnel untilsuch positions shall have been included in the Appropriation Act."

But the probation officers and the administrative personnel referred to inthe foregoing section are clearly not those probation officers required to beappointed 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 toact as such, not in the various provinces, but in the central office known as theProbation Office established in the Department of Justice, under the supervisionof a Chief Probation Officer. When the law provides that "the probation officer"

shall investigated and make reports to the court (secs. 1 and 4); that "theprobation 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.), shallallow "the probation officer" to visit him (sec. 3, par. d), shall truthfully answerany reasonable inquiries on the part of "the probation officer" concerning hisconduct or condition (sec. 3, par. 4); that the court shall notify "the probationofficer" in writing of the period and terms of probation (sec. 3, last par.), it meansthe probation officer who is in charge of a particular probationer in a particularprovince. 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 thesaid province of Batanes, to place him under his care, to supervise his conduct, toinstruct him concerning the conditions of his probation or to perform such otherfunctions as are assigned to him by law.

That under section 10 the Secretary of Justice may appoint as manyprobation 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 andpropriety of legislation is not for us to pass upon. We may think a law betterotherwise than it is. But much as has been said regarding progressiveinterpretation and judicial legislation we decline to amend the law. We are notpermitted to read into the law matters and provisions which are not there. Notfor 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 tomake the Insular Government defray the salaries of probation officers in theprovinces but to make the provinces defray them should they desire to have theProbation 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 toreceive such compensations as the Secretary of Justice may fix "until suchpositions shall have been included in the Appropriation Act". It was not theintention of the legislature to empower the Secretary of Justice to fix the salariesof probation officers in the provinces or later on to include said salaries in anappropriation act. Considering, further, that the sum of P50,000 appropriated insection 10 is to cover, among other things, the salaries of the administrativepersonnel of the Probation Office, what would be left of the amount can hardlybe 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 thePhilippines and we do not think it is seriously contended that, with the fiftythousand 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 provincialfiscal. If this is correct, the contention that without section 11 of Act No. 4221said act is 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 theprovinces 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 whatmodern criminologists call the "individualization of punishment", the adjustmentof the penalty to the character of the criminal and the circumstances of hisparticular 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 reformedand their development into hardened criminals aborted. It, therefore, takesadvantage of an opportunity for reformation and avoids imprisonment so long asthe 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 thatprobation is commendable as a system and its implantation into the Philippinesshould be welcomed, we are forced by our inescapable duty to set the law asidebecause of repugnancy to our fundamental law.

In arriving at this conclusion, we have endeavored to consider the differentaspects presented by able counsel for both parties, as well in their memorandumsas 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 thestudy and deliberation of this case. In the examination of the cases and in theanalysis 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 ismore conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919],40 Phil., 136.) Realizing the conflict of authorities, we have declined to be boundby certain adjudicated cases brought to our attention, except where the point orthe principle is settled directly or by clear implication by the more authoritativepronouncements of the Supreme Court of the United States. This line of approach is justified because:

(a ) The constitutional relations between the Federal and the Stategovernments of the United States and the dual character of the AmericanGovernment 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 notthe situation of a province with respect to the Insular Government (Art. I, sec. 8,cl. 17, and 10th 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 Holmesin 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 localconditions 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.

Avanceña, C. J., Imperial, Diaz and Concepcion, JJ., concur.

Separate Opinions

VILLA-REAL and ABAD SANTOS, J., concurring:



We concur in the result.

Footnotes

1. 35 Off. Gaz., 738. See also Resolutions of December 17, 1935.

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