THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION,petitioners,

vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent Cu Unjieng.
No appearance for respondent Judge.

LAUREL, J .:
This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorari and of prohibition to the
Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court of First Instance in criminal case No.
42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendant
Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibit the said Court of First Instance
from taking any further action or entertaining further the aforementioned application for probation, to the end that the defendant Mariano
Cu Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction rendered by this court in said case
(G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively the plai ntiff and
the offended party, and the respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The People of
the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No.
41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of First Instance
of Manila, who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931, petitioner herein
Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a protracted trial unparalleled in the
annals of Philippine jurisprudence both in the length of time spent by the court as well as in the volume in the testimony and the bulk of
the exhibits presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction sentencing the
defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight years of
prision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and Shanghai Banking
Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six
months of prision correccional to seven years, six months and twenty-seven days ofprision mayor, but affirmed the judgment in all other
respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial which were denied on
December 17, 1935, and final judgment was accordingly entered on December 18, 1935. The defendant thereupon sought to have the
case elevated oncertiorari to the Supreme Court of the United States but the latter denied the petition for certiorari in November,
1936. This court, on November 24, 1936, denied the petition subsequently filed by the defendant for leave to file a second
alternative motion for reconsideration or new trial and thereafter remanded the case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu Unjieng on
November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent
Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal
record and that he would observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro Tuason presiding,
referred the application for probation of the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter,
the Court of First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent Mariano Cu
Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221, assuming
that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), Article
III of the Constitution guaranteeing equal protection of the laws for the reason that its applicability is not uniform throughout the Islands
and because section 11 of the said Act endows the provincial boards with the power to make said law effective or otherwise in their
respective or otherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19, 1937,
elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of
several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas no han establecido
de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no son inconsistentes o incongrentes con
su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he
stands convicted by this court in G.R. No. 41200, but denying the latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han expuesto en el
cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion publica, atizada por los
recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar en los
procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer a la
superficie conclusiones enteramente differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del
veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying probation and a
notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new trial was filed by counsel on July
13, 1937. This was supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were
set for hearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjieng
because a motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with
the trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition for leave to
withdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a
banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without mature
deliberation and purely as a matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of execution of the
judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to said
judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici curiaeaforementioned,
asking that a date be set for a hearing of the same and that, at all events, said motion should be denied with respect to certain
attorneys signing the same who were members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for intervention as amici curiae to
appear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his
motion for execution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondent judge thereupon set the hearing
of the motion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as in order.
Evidence as to the circumstances under which said motion for leave to intervene as amici curiae was signed and submitted to court
was to have been heard on August 19, 1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to
put an end to what they alleged was an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of
the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this Honorable Court on him, exposing the
courts to criticism and ridicule because of the apparent inability of the judicial machinery to make effective a final judgment of this court
imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining order by this
court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners allege that the
respondent judge has acted without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of the
Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special provision, the
term "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general application, it
is also true that Act No. 4221 is not a law of general application because it is made to apply only to those provinces in whi ch
the respective provincial boards shall have provided for the salary of a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it has
provided for the salary of a probation officer as required by section 11 thereof; it being immaterial that there is an Insular
Probation Officer willing to act for the City of Manila, said Probation Officer provided for in section 10 of Act No. 4221 being
different and distinct from the Probation Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the respondent Mariano
Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to entertain the motion for reconsideration and
by failing to commit Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu
Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of applications for
probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became final and
executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was convicted by final
judgment of this court, which finding is not only presumptuous but without foundation in fact and in law, and is furthermore in contempt
of this court and a violation of the respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he issued his order of
June 28, 1937, denying the application for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation further contends
that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen years of age or over who are
convicted of crime, is unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippines
guaranteeing equal protection of the laws because it confers upon the provincial board of its province the absolute discretion to make
said law operative or otherwise in their respective provinces, because it constitutes an unlawful and improper delegation to the
provincial boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and
by the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, in
contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of
First Instance of different provinces without uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the
City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by
other petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further elaborated on
the theory that probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief
Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act
No. 4221 not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation of legi slative
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 counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending that Act No.
4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was filed by the same
persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection of the
laws and constitutes an unlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth is not
estopped from questioning the validity of its laws; that the private prosecution may intervene in probation proceedings and may attack
the probation law as unconstitutional; and that this court may pass upon the constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each and every
one of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorari or of
prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy prayed for
by them before the trial court and was still pending resolution before the trial court when the present petition was filed wi th this
court.
(3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court, said trial
court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying probation is
unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the question
as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the Court of First
Instance has assumed jurisdiction over the same upon motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over the
case and elevate the proceedings to this court, should not be tolerated because it impairs the authority and dignity of the trial
court which court while sitting in the probation cases is "a court of limited jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending resolution by the
trial court, the present action would not lie because the resolution of the trial court denying probation is appealable; for
although the Probation Law does not specifically provide that an applicant for probation may appeal from a resolution of the
Court of First Instance denying probation, still it is a general rule in this jurisdiction that a final order, resolution or decision of
an inferior court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being appealable, the
same had not become final and executory for the reason that the said respondent had filed an alternative motion for
reconsideration and new trial within the requisite period of fifteen days, which motion the trial court was able to resolve in view
of the restraining order improvidently and erroneously issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying probation is not
final and unappealable when he presented his answer to the motion for reconsideration and agreed to the postponement of
the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent upon the
accused to file an action for the issuance of the writ ofcertiorari with mandamus, it appearing that the trial court, although it
believed that the accused was entitled to probation, nevertheless denied probation for fear of criticism because the accused is
a rich man; and that, before a petition for certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it
is incumbent upon the petitioner to file a motion for reconsideration specifying the error committed so that the trial court could
have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within a
reasonable time to correct or modify it in accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or upon petition of the proper party, the petition in
the latter case taking the form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court cannot order
execution of the same while it is on appeal, for then the appeal would not be availing because the doors of probation will be
closed from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d],
827).
In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional because,
contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power, does not infringe the equal
protection clause of the Constitution, and does not encroach upon the pardoning power of the Executive. In an additional memorandum
filed on the same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from constitutional
objections and contend, in addition, that the private prosecution may not intervene in probation proceedings, much less question the
validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of the Act; that the
validity of Act cannot be attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11 of
the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for
having been filed out of time but was admitted by resolution of this court and filed anew on November 5, 1937. This
memorandum elaborates on some of the points raised by the respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court below, in passing
upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said application assumed the task not only of
considering the merits of the application, but of passing upon the culpability of the applicant, notwithstanding the final pronouncement of
guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look into the ci rcumstances
attending the commission of the offense, this does not authorize it to reverse the findings and conclusive of this court, either directly or
indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs, averments, and pleadings of the
parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each
and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to
litigation, and judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the posi tion that
they occupy in the interrelation and operation of the intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court prefers to cut
the Gordian knot and take up at once the two fundamental questions presented, namely, (1) whether or not the constitutionality of Act
No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional.
Considerations of these issues will involve a discussion of certain incidental questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-settled rule that the
constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented
inappropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis
mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless, resort may be
made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if available, are not plain,
speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the constitutionality
of a statute may be raised by the petitioner in mandamusproceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine
Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law.
ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought in the name of the
Government of the Philippines. It has also been held that the constitutionality of a statute may be questioned inhabeas
corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on
an application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234);
and even on an application for preliminary injunction where the determination of the constitutional question is necessary to a decision of
the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385;
[1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6
Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve
years ago was, like the present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972, popularly
known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was not met squarely by
the respondent in a demurrer. A point was raised "relating to the propriety of the constitutional question being decided in original
proceedings in prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No.
2972 was constitutional. The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed the
judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however,
the Federal Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted concurrent
jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original jurisdiction over courts of
first instance, when such courts are exercising functions without or in excess of their jurisdiction. It has been held by that court
that the question of the validity of the criminal statute must usually be raised by a defendant in the trial court and be carried
regularly in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case
where a new act seriously affected numerous persons and extensive property rights, and was likely to cause a multiplicity of
actions, the Supreme Court exercised its discretion to bring the issue to the act's validity promptly before it and decide in the
interest of the orderly administration of justice. The court relied by analogy upon the cases of Ex parteYoung (209 U. S.,
123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law.
ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed.,
755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise by
demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask a decision on the merits. In
view of the broad powers in prohibition granted to that court under the Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for
the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal
Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether the
inferior court has jurisdiction independent of the statute the constitutionality of which is questioned, because in such cases the interior
court having jurisdiction may itself determine the constitutionality of the statute, and its decision may be subject to review, and
consequently the complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But
where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of
prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365;
Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va.,
54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which prescribes in detailed
manner the procedure for granting probation to accused persons after their conviction has become final and before they have served
their sentence. It is true that at common law the authority of the courts to suspend temporarily the execution of the sentence is
recognized and, according to a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the power is
inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N.
W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the
leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law the power of the court was
limited to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to impose
the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers vested in them on such
subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert
their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the
proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the
proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that
indisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right in
advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be
otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained
according to the methods by it provided belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of Cavite (29 Phil.,
265), decided by this court in 1915, also reached the conclusion that the power to suspend the execution of sentences pronounced in
criminal cases is not inherent in the judicial function. "All are agreed", he said, "that in the absence of statutory authori ty, it does not lie
within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, when they
argue that a Court of First Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the question has not
been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex
rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been
squarely presented not only before this court by the petitioners but also before the trial court by the private prosecution. The
respondent, Hon. Jose O Vera, however, acting as judge of the court below, declined to pass upon the question on the ground that the
private prosecutor, not being a party whose rights are affected by the statute, may not raise said question. The respondent j udge cited
Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225
Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack made on the constitutionality of
a statute by one who has no interest in defeating it because his rights are not affected by its operation. The respondent judge further
stated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to declare a legislative
enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where
he can conscientiously and with due regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I,
p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that the constitutional
question was raised before it, it refused to consider the question solely because it was not raised by a proper party. Respondents
herein reiterates this view. The argument is advanced that the private prosecution has no personality to appear in the hearing of the
application for probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and
hence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are parties to
a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by
a court without jurisdiction is void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to be given the
statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the
proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is true that, as
a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily
it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See,
also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of
exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question affecting the constitutionality of a
statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict
of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on
appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though
raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's
Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685;
113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke
[1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this
court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the
hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise
the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case
such that he has sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really
violates the constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having
it set aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own
laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine
Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in
behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429),
the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a
mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was though, as a
general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has
been held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the
validity of the statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court by
persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was not
properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of
certiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so
that if not raised by the pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be considered on
appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that
the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is
a very sharp conflict of authorities, it is said that the question may be raised for the first time at any state of the proceedings, either in
the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the
constitutional question, though raised for first time on appeal, if it appears that a determination of the question is necessary to a
decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis,
Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has
been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the
court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question
raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs.
Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is
not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the
People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if
Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can
challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer
vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich.,
303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedi ngs to test
the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their representatives;
that to an accusation by the people of Michigan of usurpation their government, a statute enacted by the people of Michigan is
an adequate answer. The last proposition is true, but, if the statute relied on in justification is unconstitutional, it is statute only
in form, and lacks the force of law, and is of no more saving effect to justify action under it than if it had never been enacted.
The constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow . . . The legisl ature
and the respondents are not the only parties in interest upon such constitutional questions. As was remarked by Mr. Justice
Story, in speaking of an acquiescence by a party affected by an unconstitutional act of the legislature: "The people have a
deep and vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vs.
Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the Attorney-General of
Kansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the state may bring the action,
the Supreme Court of Kansas said:
. . . the state is a proper party indeed, the proper party to bring this action. The state is always interested where the
integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual
plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac.,
118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county attorney, may exercise
his bet judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its
validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms
(State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its questionable provisions
(State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress &
Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d],
286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417;
State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the laws, has
no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel. Hall,
District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679;
18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a statute is unconstitutional if he
finds if in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was
the judge should not, merely because he believed a certain statute to be unconstitutional forbid the district attorney to fil e a bill
of information charging a person with a violation of the statute. In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered for decision, and unless it must be decided in order to
determine the right of a party litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officer
on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers the
statute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute be unconstitutional.
State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g., the state auditor and state
treasurer, should not decline to perform ministerial duties imposed upon them by a statute, on the ground that they believe the
statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution of the
state. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals another, and if, in
his judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is
compelled to submit to the court, by way of a plea, that one of the statutes is unconstitutional. If it were not so, the power of the
Legislature would be free from constitutional limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the validity of its
laws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have proceeded on the
assumption that the rule as stated is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in
behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that the validity before this court, that
the City Fiscal is estopped from attacking the validity of the Act and, not authorized challenge the validity of the Act in i ts application
outside said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been attacked as
unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no reason for
considering the People of the Philippines estopped from nor assailing its validity. For courts will pass upon a constitutional questions
only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a
valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon the statute and treating it as
valid until it is held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of the instant
case. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the part of wisdom, and just
respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held
that the determination of a constitutional question is necessary whenever it is essential to the decision of the case (12 C. J., p. 782,
citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas.
1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458;
Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute
the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs.
Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation solely from Act
No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new addition to our
statute books and its validity has never before been passed upon by the courts; that may persons accused and convicted of crime in
the City of Manila have applied for probation; that some of them are already on probation; that more people will likely take advantage of
the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about four years since his
first conviction. All wait the decision of this court on the constitutional question. Considering, therefore, the importance which the instant
case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221
be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. 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 confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are
affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public
welfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that we
may decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this
point was sustained by the Supreme Court of the United States. A more binding authority in support of the view we have taken can not
be found.
We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now for the main
inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by clear implication
from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the national
legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in
clear cases, it will not hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of the essence of
judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of
the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within constitutional limitations.
The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. "The question of the validity
of every statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case
vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the
courts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath to
support the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particular
law they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn
declarations of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political
philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective
Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution except in a clear case. This
is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the President of the
Philippines had already expressed his opinion against the constitutionality of the Probation Act, adverting that as to the Executive the
resolution of this question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and independence of
this court. We take notice of the fact that the President in his message dated September 1, 1937, recommended to the National
Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the
Nationality Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by the
President on September 13, 1937, much against his wish, "to have stricken out from the statute books of the Commonwealth a law . . .
unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the President
exercised his constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his reasons
are not binding upon us in the determination of actual controversies submitted for our determination. Whether or not the Executive
should express or in any manner insinuate his opinion on a matter encompassed within his broad constitutional power of veto but which
happens to be at the same time pending determination in this court is a question of propriety for him exclusively to decide or determine.
Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgment on way or another and prevent
us from taking what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us to make any
vehement affirmance during this formative period of our political history, it is that we are independent of the Executive no less than of
the Legislative department of our government independent in the performance of our functions, undeterred by any consideration,
free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we
understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the pardoning power
of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies the equal protecti on of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of the approval of Act
No. 4221, otherwise known as the Probation Act, vests in the Governor-General of the Philippines "the exclusive power to grant
pardons and reprieves and remit fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11,
subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive" found in the Jones
Law has been omitted from the Constitution. Under the Jones Law, as at common law, pardon could be granted any time after the
commission of the offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43
Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person
before the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of
the state constitutions, provided that the pardoning power can only be exercised "after conviction". So, too, under the new Constitution,
the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in the United States
(Vide Constitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar
of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not understood that
the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs.
Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from office and disqualification to hold
and enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the
whole punishment attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital
punishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense committed,
together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific
mention of "commutation" and of the power of the executive to impose, in the pardons he may grant, such conditions, restrictions and
limitations as he may deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrence of
the National Assembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes
to state that the pardoning power has remained essentially the same. The question is: Has the pardoning power of the Chief Executive
under the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the power may not,
therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative restrictions, nor can
like power be given by the legislature to any other officer or authority. The coordinate departments of government have nothi ng to do
with the pardoning power, since no person properly belonging to one of the departments can exercise any powers appertaining to either
of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning
power is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neither
exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838,
839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void.
But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that an order
indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37
Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the opinion of
the court that under the common law the power of the court was limited to temporary suspension and that the right to suspend
sentenced absolutely and permanently was vested in the executive branch of the government and not in the judiciary. But, the right of
Congress to establish probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the future is
concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the
legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of an enlarged but
wise discretion the infinite variations which may be presented to them for judgment, recourse must be had Congress whose legislative
power on the subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.)
This decision led the National Probation Association and others to agitate for the enactment by Congress of a federal probation law.
Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an
appropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service. (Johnson, Probation
for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the United States,
through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has begun to serve his sentence, that
court has no power under the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence was
imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act was not considered but was assumed. The
court traced the history of the Act and quoted from the report of the Committee on the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation either, by
suspending sentence or by placing the defendants under state probation officers or volunteers. In this case, however (Ex parte
United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme
Court denied the right of the district courts to suspend sentenced. In the same opinion the court pointed out the necessity for
action by Congress if the courts were to exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was favorably
reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee again favorably reported a
probation bill to the House, but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those convicted
of violations of its criminal laws in harmony with that of the states of the Union. At the present time every state has a probation
law, and in all but twelve states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United States supra, the
Circuit Court of Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by the Circuit
Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in
no manner to encroach upon the pardoning power of the President. This case will be found to contain an able and
comprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the authorities cited
therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of
the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to Congress as
possessing the requisite power to enact probation laws, that a federal probation law as actually enacted in 1925, and that the
constitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and consistently sustained by the
inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a probation law under
its broad power to fix the punishment of any and all penal offenses. This conclusion is supported by other authorities. In Ex parte Bates
([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to
denominate and define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State vs. Abbott
([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set
punishment for crime is very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the
largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether it should be certain or
indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has
defined all crimes and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courts
particularly the trial courts large discretion in imposing the penalties which the law prescribes in particular cases. It is believed that
justice can best be served by vesting this power in the courts, they being in a position to best determine the penalties which an
individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence
merely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law is
clearly excessive, the courts being allowed in such case to submit to the Chief Executive, through the Department of Justice, such
statement as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances are
attendant in the commission of a crime and the law provides for a penalty composed of two indivisible penalties, the courts may allow
such circumstances to offset one another in consideration of their number and importance, and to apply the penalty according to the
result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article
64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each periods, in case the penalty
prescribed by law contains three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are allowed
to fix any amount within the limits established by law, considering not only the mitigating and aggravating circumstances, but more
particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a
discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who has not acted without discernment,
but always lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 of the same Code
provides that in case of "incomplete self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some
of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of
the Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having
in mind the social danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fine
ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term of
imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty person is more
than seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative
Code, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within the three years next
following the date of the sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convict
shall become insane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the execution of
said sentence shall be suspended with regard to the personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more clearly demonstrated in
various other enactments, including the probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and
subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prison sentence for an offenses
punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense;
and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the
same." Certain classes of convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has also enacted
the Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Act and
section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of the Philippine
Legislature and recently reamended by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested the
intention of the legislature to "humanize" the penal laws. It allows, in effect, the modification in particular cases of the penalties
prescribed by law by permitting the suspension of the execution of the judgment in the discretion of the trial court, after due hearing and
after investigation of the particular circumstances of the offenses, the criminal record, if any, of the convict, and his social history. The
Legislature has in reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as the conditions of
probation are faithfully observed. It 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 language of the Supreme Court of New Mexico, "the element of
punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial function under and within the
limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal causes, with which the executive
can have nothing to do." (Ex parteBates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the
constitutionality of the Georgia probation statute against the contention that it attempted to delegate to the courts the pardoning power
lodged by the constitution in the governor alone is vested with the power to pardon after final sentence has been imposed by the courts,
the power of the courts to imposed any penalty which may be from time to time prescribed by law and in such manner as may be
defined cannot be questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to vest in the
courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning
power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702;
State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex 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; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs.
Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567;
Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re
Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114
Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac.,
1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs.
Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, 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 vs. ex rel. Forsyth vs. Court of
Session [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. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker 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., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197;
136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex
rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of
authorities holding that the courts may be legally authorized by the legislature to suspend sentence by the establishment of a system of
probation however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393),
deserved particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the execution of a sentence
until otherwise ordered by the court, and required that the convicted person be placed under the charge of a parole or peace officer
during the term of such suspension, on such terms as the court may determine, was held constitutional and as not giving the court a
power in violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Vide, al so, Re Giannini
[1912], 18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are actually district and different from each other, both in origin
and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am.
Crim. Rep., 675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was
adopted, are totally distinct and different in their nature. The former was always a part of the judicial power; the latter was
always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily
or indefinitely, but the conviction and liability following it, and the civil disabilities, remain and become operative when judgment
is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never
committed the offense. It removes the penalties and disabilities, and restores him to 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 the state constitutions were perfectly familiar with the principles governing the power to grant
pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and
the words of the constitution were used to express the authority formerly exercised by the English crown, or by its
representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, it
did not comprehend any part of the judicial functions to suspend sentence, and it was never intended that the authority to grant
reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments,
that criminal courts has so long maintained. The two powers, so distinct and different in their nature and character, were still
left separate and distinct, the one to be exercised by the executive, and the other by the judicial department. We therefore
conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases after
conviction, a power inherent in such courts at common law, which was understood when the constitution was adopted to be
an ordinary judicial function, and which, ever since its adoption, has been exercised of legislative power under the constitution.
It does not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced from
the earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265,
Carson, J., concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not
exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the mere
fact that he is placed on probation. Section 4 of the Act provides that the probation may be definitely terminated and the probationer
finally discharged from supervision only after the period of probation shall have been terminated and the probation officer shall have
submitted a report, and the court shall have found that the probationer has complied with the conditions of probation. The probationer,
then, during the period of probation, remains in legal custody subject to the control of the probation officer and of the court; and, he
may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the
sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is really a new mode of
punishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find prescribed by the criminal
laws. For this reason its application is as purely a judicial act as any other sentence carrying out the law deemed applicabl e to
the offense. The executive act of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or
rather is outside of and above it. There is thus no conflict with the pardoning power, and no possible unconstitutionality of the
Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex.
Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in support of their
contention that the power to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the Jones Law,
may not be conferred by the legislature upon the courts by means of probation law authorizing the indefinite judicial suspension of
sentence. We have examined that case and found that although the Court of Criminal Appeals of Texas held that the probation statute
of the state in terms conferred on the district courts the power to grant pardons to persons convicted of crime, it also distinguished
between suspensions sentence on the one hand, and reprieve and commutation of sentence on the other. Said the court, through
Harper, J.:
That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is settled by the
decisions of the various courts; it being held that the distinction between a "reprieve" and a suspension of sentence is that a
reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time. (Carnal vs.
People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp.
6115, 6116. This law cannot be hold in conflict with the power confiding in the Governor to grant commutations of punishment,
for a commutations is not but to change the punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of Montana had under
consideration the validity of the adult probation law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of
1921. The court held the law valid as not impinging upon the pardoning power of the executive. In a unanimous decision penned by
Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our Constitution was
adopted, and no one of them was intended to comprehend the suspension of the execution of the judgment as that phrase is
employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution of
the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has
committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35
So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am.
Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a less penalty for the one originally
imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A
"reprieve" or "respite" is the withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs.
State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has been determined; but
the same objections have been urged against parole statutes which vest the power to parole in persons other than those to
whom the power of pardon is granted, and these statutes have been upheld quite uniformly, as a reference to the numerous
cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose.
(See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in respect to
those serving their probationary sentences, remains as full and complete as if the Probation Law had never been enacted. The
President may yet pardon the probationer and thus place it beyond the power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason void, does
section 11 thereof constitute, as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed among three coordinate and substantially independent
organs: the legislative, the executive and the judicial. Each of these departments of the government derives its authority from the
Constitution which, in turn, is the highest expression of popular will. Each has exclusive cognizance of the matters within i ts jurisdiction,
and is supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a unicamiral
National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the National
Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to
abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is said to
have originated with the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of
agency, was established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found its
way into America as an enlightened principle of free government. It has since become an accepted corollary of the principle of
separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The
legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have."
(Locke on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled
maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to
any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the Constitution itself is charged. The power to whose judgment, wisdom, and
patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities by choosing other agencies upon which
the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the
people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval
in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that such a delegated power constitutes
not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the
matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions. An exceptions
sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to local authorities. (Rubi vs.
Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S.,
141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of
government, that local affairs shall be managed by local authorities, and general affairs by the central authorities; and hence while the
rule is also fundamental that the power to make laws cannot be delegated, the creation of the municipalities exercising local self
government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but
rather as the grant of the authority to prescribed local regulations, according to immemorial practice, subject of course to the
interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick,supra.) On quite the same principle, Congress is
powered to delegate legislative power to such agencies in the territories of the United States as it may select. A territory stands in the
same relation to Congress as a municipality or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup.
Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed.,
128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at large. Some authoriti es maintain
that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442;
Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be republican in form because of its adoption of
the initiative and referendum has been held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912],
223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked upon with favor by
certain progressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn. (Opinions of the
Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac.,
402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be delegated by
the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines provides that "The National Assembly
may by law authorize the President, subject to such limitations and restrictions as it may impose, to fix within specified li mits, tariff rates,
import or export quotas, and tonnage and wharfage dues." And section 16 of the same article of the Constitution provides that "In times
of war or other national emergency, the National Assembly may by law authorize the President, for a limited period and subject to such
restrictions as it may prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of
this decision to determine whether or not, in the absence of the foregoing constitutional provisions, the President could be authorized to
exercise the powers thereby vested in him. Upon the other hand, whatever doubt may have existed has been removed by the
Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a
probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall be appointed by
the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the statute was
complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the judgment of any other
appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court
adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to authorize the Governor-General, in
his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the proclamation a crime. (See and
cf. Compaia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited
by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated
by executive officers and administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with power to determine
when the Act should take effect in their respective provinces. They are the agents or delegates of the legislature in this respect. The
rules governing delegation of legislative power to administrative and executive officers are applicable or are at least indicative of the
rule which should be here adopted. An examination of a variety of cases on delegation of power to administrative bodies will show that
the ratio decidendi is at variance but, it can be broadly asserted that the rationale revolves around the presence or absence of a
standard or rule of action or the sufficiency thereof in the statute, to aid the delegate in exercising the granted discretion. In some
cases, it is held that the standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of
the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative officer or
board may be guided in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495;
79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107
A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the
provincial boards in the exercise of their discretionary power to determine whether or not the Probation Act shall apply in their
respective provinces? What standards are fixed by the Act? We do not find any and none has been pointed to us by the respondents.
The probation Act does not, by the force of any of its provisions, fix and impose upon the provincial boards any standard or guide in the
exercise of their discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent case of
Schecter, supra, is a "roving commission" which enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act,
the legislature does not seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to determine. In other words, the provincial boards of the various provinces are to
determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The applicability and application of the
Probation Act are entirely placed in the hands of the provincial boards. If the provincial board does not wish to have the Act applied in
its province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The plain language
of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative power to the provincial
boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily involves a discretion
as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law.
The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1
Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of this court
in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil.,
660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of the law conferring
upon the Governor-General authority to adjust provincial and municipal boundaries. In the second case, this court held it lawful for the
legislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor
and approved by the provincial board. In the third case, it was held proper for the legislature to vest in the Governor-General authority
to suspend or not, at his discretion, the prohibition of the importation of the foreign cattle, such prohibition to be raised "if the conditions
of the country make this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and livestock of
the lands."
It should be observed that in the case at bar we are not concerned with the simple transference of details of execution or the
promulgation by executive or administrative officials of rules and regulations to carry into effect the provisions of a law. If we were,
recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phi l., 119; Alegre
vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil.,
218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature. It is true that
laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by the people of a particular
community (6 R. C. L., 116, 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 State ruled that the legislature may delegate a power not legislative which
it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The
power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence
of facts or conditions as the basis of the taking into effect of a law. That is a mental process common to all branches of the government.
(Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs.
Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding
the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity arising from
social and economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of
Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine, July,
1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds
restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following language speaking of declaration
of legislative power to administrative agencies: "The principle which permits the legislature to provide that the administrative agent may
determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this
authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words,
the legislature, as it its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken,
and that, under other circumstances, different of no action at all is to be taken. What is thus left to the administrative official is not the
legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done
according to the terms of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p.
1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency
of an Act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which
the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt.,
357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to some other person
or body the power to determine when the specified contingencies has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the provincial board. It leaves, as we
have already said, the entire operation or non-operation of the law upon the provincial board. the discretion vested is arbitrary because
it is absolute and unlimited. A provincial board need not investigate conditions or find any fact, or await the happening of any specified
contingency. It is bound by no rule, limited by no principle of expendiency announced by the legislature. It may take into
consideration certain facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any
reason whatsoever for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely
at its pleasure. The fact that at some future time we cannot say when the provincial boards may appropriate funds for the salaries
of probation officers and thus put the law into operation in the various provinces will not save the statute. The time of its taking into
effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the happening of a certain specified
contingency, or upon the ascertainment of certain facts or conditions by a person or body other than legislature itself.
The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the Probation Law in their
respective provinces. In some jurisdiction, constitutions provided that laws may be suspended only by the legislature or by i ts authority.
Thus, section 28, article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be exercised
except by the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation of the laws shall never be
suspended, except by authority of the General Assembly." Yet, even provisions of this sort do not confer absolute power of suspension
upon the legislature. While it may be undoubted that the legislature may suspend a law, or the execution or operation of a law, a law
may not be suspended as to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and
cannot be made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178),
it was said:
By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared that the power of
suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived
from it, to be exercised in such particular cases only as the legislature shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna Charta of England, and from the bill of rights passed in the reign of William
and Mary. The bill of rights contains an enumeration of the oppressive acts of James II, tending to subvert and extirpate the
protestant religion, and the laws and liberties of the kingdom; and the first of them is the assuming and exercising a power of
dispensing with and suspending the laws, and the execution of the laws without consent of parliament. The first article in the
claim or declaration of rights contained in the statute is, that the exercise of such power, by legal authority without consent of
parliament, is illegal. In the tenth section of the same statute it is further declared and enacted, that "No dispensation by non
obstante of or to any statute, or part thereof, should be allowed; but the same should be held void and of no effect, except a
dispensation be allowed of in such statute." There is an implied reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English Constitution, "that absolute despotic power, which must in all
governments reside somewhere," is intrusted to the parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this particular. Here the sovereign and absolute power resides in the
people; and the legislature can only exercise what is delegated to them according to the constitution. It is obvious that the
exercise of the power in question would be equally oppressive to the subject, and subversive of his right to protection,
"according to standing laws," whether exercised by one man or by a number of men. It cannot be supposed that the people
when adopting this general principle from the English bill of rights and inserting it in our constitution, intended to bestow by
implication on the general court one of the most odious and oppressive prerogatives of the ancient kings of England. It is
manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and l aws, that any
one citizen should enjoy privileges and advantages which are denied to all others under like circumstances; or that ant one
should be subject to losses, damages, suits, or actions from which all others under like circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals
wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act, power was given to the
board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of
which that section constituted a part. It was held that the legislature could not confer that power. The court observed that it could no
more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on
commercial paper, or to suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri
was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a
road system contained a provision that "if the county court of any county should be of opinion that the provisions of the act should not
be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act
should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept
in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent
provisions of a former act, and yet it is left to the county court to say which act shall be enforce in their county. The act does not submit
the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation
within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not, then, require the
county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and
abrogated the inconsistent provisions of previous laws, the county court is . . . empowered, to suspend this act and revive the repealed
provisions of the former act. When the question is before the county court for that tribunal to determine which law shall be in force, it is
urge before us that the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be
delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the abstract; for
the county court of Saline county, after the act had been for several months in force in that county, did by order suspend its operation;
and during that suspension the offense was committed which is the subject of the present indictment . . . ." (See Mitchell vs. State
[1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different from those applicable to other localities and, while recognizing the
force of the principle hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of the submission of option
laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character which should
receive different treatment in different localities placed under different circumstances. "They relate to subjects which, like the retailing of
intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are
sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary powers of
municipalities to make by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it is proper that
the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of
local self-government and the propriety of leaving matters of purely local concern in the hands of local authorities or for the people of
small communities to pass upon, we believe that in matters of general of general legislation like that which treats of criminals in general,
and as regards the general subject of probation, discretion may not be vested in a manner so unqualified and absolute as provided in
Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the operation of the Probation Act in
particular provinces but, considering that, in being vested with the authority to appropriate or not the necessary funds for the salaries of
probation officers, they thereby are given absolute discretion to determine whether or not the law should take effect or operate in their
respective provinces, the provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in
particular provinces, the Act to be held in abeyance until the provincial boards should decide otherwise by appropriating the necessary
funds. The validity of a law is not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen & Co.
vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what may be termed
legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of
power behind it. It is unquestionable that the mass of powers of government is vested in the representatives of the people and that
these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint,
or by particular provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23;
Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a
limitation of power and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not be
delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the provincial
boards and is, for this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any person of the
equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government and on the
subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power, taxation and eminent
domain. The equal protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of
equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U.
S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of the laws in a
question not always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co.
[1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring others in
prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911],
222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup.
Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on
substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing
conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209;
3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas
Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs.
Clough [1917], 242 U.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; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative power, although
perhaps this is not necessarily the result in every case. Adopting the example given by one of the counsel for the petitioners in the
course of his oral argument, one province may appropriate the necessary fund to defray the salary of a probation officer, while another
province may refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province but not in the latter.
This means that a person otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one
province while another person similarly situated in another province would be denied those same benefits. This is obnoxious
discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary funds for the salaries of the
probation officers in their respective provinces, in which case no inequality would result for the obvious reason that probation would be
in operation in each and every province by the affirmative action of appropriation by all the provincial boards. On that hypothesis, every
person coming within the purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will there be any
resulting inequality if no province, through its provincial board, should appropriate any amount for the salary of the probation officer
which is the situation now and, also, if we accept the contention that, for the purpose of the Probation Act, the City of Manila should
be considered as a province and that the municipal board of said city has not made any appropriation for the salary of the probation
officer. These different situations suggested show, indeed, that while inequality may result in the application of the l aw and in the
conferment of the benefits therein provided, inequality is not in all cases the necessary result. But whatever may be the case, it is clear
that in section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to
be sure, abundant authorities requiring actual denial of the equal protection of the law before court should assume the task of setting
aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No. 4221
permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a law which permits of
such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is
within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs.
Mayor [1876], 92 U. S., 259; 23 Law. ed., 543;Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103
U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S.,
356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama
[1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., 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 the law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p.
372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94
Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under
section 11 of the Probation Act, not only may said Act be in force in one or several provinces and not be in force in other provinces, but
one province may appropriate for the salary of the probation officer of a given year and have probation during that year and
thereafter decline to make further appropriation, and have no probation is subsequent years. While this situation goes rather to the
abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable
in a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand".
(Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed.,
1231). In that case, the Supreme Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the
contention that there was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial uniformity. It should
be observed, however, that this case concerns the right to preliminary investigations in criminal cases originally granted by General
Orders No. 58. No question of legislative authority was involved and the alleged denial of the equal protection of the laws was the result
of the subsequent enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in section 2 thereof
that "in cases triable only in the court of first instance of the City of Manila, the defendant . . . shall not be entitled as of right to a
preliminary examination in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have presented an
information against him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that the
investigation by the prosecuting attorney although not in the form had in the provinces was considered a reasonable substitute for
the City of Manila, considering the peculiar conditions of the city as found and taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the constitution of
Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except those in certain counties for
which counties the constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision complained of,
then, is found in the constitution itself and it is the constitution that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant to equal-protection
clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is whether or not the
entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination
only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that
its removal will leave the constitutional features and purposes of the act substantially unaffected by the process. (Riccio vs.
Hoboken, 69 N. J. Law., 649, 662; 63 L. 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 the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, i f
separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far independent of
the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they had supposed that they
could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446;
Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a
complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.)
The void provisions must be eliminated without causing results affecting the main purpose of the Act, in a manner contrary to
the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; 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; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the
invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the
legislative will, independently of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N.
W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co.
[1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the respective
provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the remainder of the Act
would still be valid and may be enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our
opinion, is inseparably linked with the other portions of the Act that with the elimination of the section what would be left is the bare
idealism of the system, devoid of any practical benefit to a large number of people who may be deserving of the intended beneficial
result of that system. The clear policy of the law, as may be gleaned from a careful examination of the whole context, is to make the
application of the system dependent entirely upon the affirmative action of the different provincial boards through appropriation of the
salaries for probation officers at rates not lower than those provided for provincial fiscals. Without such action on the part of the various
boards, no probation officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divi ded or
subdivided into provinces and it needs no argument to show that if not one of the provinces and this is the actual situation now
appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no
probation without a probation officer. Neither can there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every probation officer is given, as to
the person placed in probation under his care, the powers of the police officer. It is the duty of the probation officer to see that the
conditions which are imposed by the court upon the probationer under his care are complied with. Among those conditions, the
following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; "(f)
Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in accordance with law.
The court is required to notify the probation officer in writing of the period and terms of probation. Under section 4, it is only after the
period of probation, the submission of a report of the probation officer and appropriate finding of the court that the probationer has
complied with the conditions of probation that probation may be definitely terminated and the probationer finally discharged from
supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as reported by the probation officer, it
may issue a warrant for the arrest of the probationer and said probationer may be committed with or without bail. Upon arraignment and
after an opportunity to be heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order the
execution of the sentence originally imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every
probation officer to furnish to all persons placed on probation under his supervision a statement of the period and conditions of their
probation, and to instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage
them by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by court as may
seem most suitable, to bring about improvement in their conduct and condition; to report in writing to the court having jurisdiction over
said probationers at least once every two months concerning their conduct and condition; to keep records of their work; make such
report as are necessary for the information of the Secretary of Justice and as the latter may require; and to perform such other duties as
are consistent with the functions of the probation officer and as the court or judge may direct. The probation officers provided for in this
Act may act as parole officers for any penal or reformatory institution for adults when so requested by the authorities thereof, and, when
designated by the Secretary of Justice shall act as parole officer of persons released on parole under Act Number Forty-one Hundred
and Three, without additional compensation."
It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10 of Act which
provides as follows:
There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office under the
direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and consent of the Senate who
shall receive a salary of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out of any
funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of
Justice, who is hereby authorized to appoint probation officers and the administrative personnel of the probation officer under
civil service regulations from among those who possess the qualifications, training and experience prescribed by the Bureau of
Civil Service, and shall fix the compensation of such probation officers and administrative personnel until such positions shall
have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those probation officers
required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis, that the probation officers
referred to in section 10 above-quoted are to act as such, not in the various provinces, but in the central office known as the Probation
Office established in the Department of Justice, under the supervision of the Chief Probation Officer. When the law provides that "the
probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the
probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer"
concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of
probation (sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It never
could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a probationer officer in the
City of Manila, or to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place him under his
care, to supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are
assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups of provinces is,
of course possible. But this would be arguing on what the law may be or should be and not on what the law is. Between is and ought
there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is. But
much as has been said regarding progressive interpretation and judicial legislation we decline to amend the law. We are not permitted
to read into the law matters and provisions which are not there. Not for any purpose not even to save a statute from the doom of
invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of probation
officers in the provinces but to make the provinces defray them should they desire to have the Probation Act apply thereto. The sum of
P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation officers
in the central office at Manila. These probation officers are to receive such compensations as the Secretary of Justice may fix "until
such positions shall have been included in the Appropriation Act". It was the intention of the legislature to empower the Secretary of
Justice to fix the salaries of the probation officers in the provinces or later on to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the
administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to pay even
nominal salaries to probation officers in the provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines
and we do not think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each
province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention that
without section 11 of Act No. 4221 said 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 the provinces without probation officers.
Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here and in other
countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment of the penalty to the
character of the criminal and the circumstances of his particular case. It provides a period of grace in order to aid in the rehabilitation of
a penitent offender. It is believed that, in any cases, convicts may be reformed and their development into hardened criminal s aborted.
It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long as the convicts gives promise of
reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht,
24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual convict is merely incidental. But while
we believe that probation is commendable as a system and its implantation into the Philippines should be welcomed, we are forced by
our inescapable duty to set the law aside because of the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both parti es, as well
in their memorandums as in their oral argument. We have examined the cases brought to our attention, and others we have been able
to reach in the short time at our command for the study and deliberation of this case. In the examination of the cases and in then
analysis of the legal principles involved we have inclined to adopt the line of action which in our opinion, is supported better reasoned
authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of
authorities, we have declined to be bound by certain adjudicated cases brought to our attention, except where the point or principle is
settled directly or by clear implication by the more authoritative pronouncements of the Supreme Court of the United States. This line of
approach is justified because:
(a) The constitutional relations between the Federal and the State governments of the United States and the dual character of
the American Government is a situation which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia with reference to the Federal Government of the
United States is not the situation of the 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 the state judicial organizations of the United States do not embrace the integrated judicial system
of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76;
49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief Justice Waite in
Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2,
Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any
pronouncement regarding costs. So ordered.