People V Vera

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

TOPICS
General Principles of Judicial Review , Requisites of Judicial Review , Delegation of Powers

SUMMARY
Issuance of the writ of certiorari and of prohibition to the Court of First Instance of Manila(COFI-Manila) so that this court
may review the actuations more particularly the application of the defendant Mariano Cu Unjieng (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 Unjieng may be forthwith committed
to prison in accordance with the final judgment of conviction rendered by this court.

FACTS
Unjieng is convicted in criminal case No. 42649 "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al." which
was filed with the COFI-Manila, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as
private prosecutor. There were several appeals and the case was even elevated to the US Supreme Court, however same were
denied.

Unjieng fied a probation before the trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature. He
stated 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. COFI-Manila, Judge Pedro Tuason presiding, referred the application for probation of the Insular
Probation Office which recommended denial of the probation. Thereafter, the COFI-Manila (7 th Branch) , Judge Jose O. Vera
presiding, set the petition for hearing.

Fiscal of the City of Manila filed and the private prosecution filed an opposition. The Private prosecution allege that the 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4221 assuming that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1,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 because 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, 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.

Then, Judge Jose O. Vera promulgated a resolution finding Unjieng “es inocente per duda racional” (innocent by rational doubt)
but denying the latter's petition for probation. Unjieng filed an exception to the resolution denying probation and a notice of
intention to file a motion for reconsideration. The motion including another motions for reconsideration (supplemental and
alternative) filed were set for hearing.

However it was postponed because of a filing of 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. The filing of the motion was circulated at a banquet given by
counsel for Mariano Cu Unjieng. Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of
execution of the judgment and forthwith to commit Mariano Cu Unjieng to jail in obedience to said judgment.

Private prosecution filed its opposition to the motion for leave to intervene as amici curiae aforementioned, asking that a date be
set for a hearing of the same and that, at all events, said motion should be denied. Judge Jose O. Vera issued an order requiring
all parties including the movants for intervention as amici curiae to appear before the court . 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 hearing of the motion for execution was moved, but proceeded to consider the motion for leave to intervene as  amici
curiae as in order. At this juncture, 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
ANS
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.

BASIS OF PETITIONERS IN FILING WRIT OF CERTIORARI AND PROHIBITION AND SUPPLEMENTAL

INFORMATIONS OF PETITIONERS

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 apply only to the provinces of the Philippines

(2) even if the term "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not a law of general application because it is made to apply only to those
provinces in which the respective provincial boards shall have provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it has
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. Even if the respondent judge originally had jurisdiction to entertain the application for probation, he nevertheless acted
without jurisdiction or in excess 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.

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

a. providing for a system of probation for persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it violates 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.
b. it gives the provincial boards the authority to enlarge the powers of the Court of First Instance of different provinces
without uniformity.

ANS
In another supplementary petition 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

a. 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.
b. unwarranted delegation of legislative power and a denial of the equal protection of the laws.

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

a. City Fiscal sustaining the power of the state to impugn the validity of its own laws
b. Counsel for petitioner: Act No. 4221 constitutes an unwarranted delegation of legislative power

Another joint memorandum

a. 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 Act is void
b. Commonwealth is not estopped from questioning the validity of its laws
c. private prosecution may intervene in probation proceedings and may attack the probation law as unconstitutional
d. this court may pass upon the constitutional question in prohibition proceedings.

RESPONDENTS ARGUMENTS

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

As special defenses, respondents allege:

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

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

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

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the question as
to whether or not 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
ANS
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 of certiorari with mandamus, it appearing that the trial court, although it
believed that the accused was entitled to probation, nevertheless denied probation for fear of criticism because the accused is a
rich man; and that, before a petition for certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it
is incumbent upon the petitioner to file a motion for reconsideration specifying the error committed so that the trial court could
have an opportunity to correct or cure the same.

(10) That on 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).

ISSUES

(1) whether or not the constitutionality of Act No. 4221 has been properly raised in these proceedings

When can issue of Constitutionality be determined?

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.

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. Several cases were presented where the issue of constitutionality were considered in
mandamus proceedings, action of quo warranto, habeas corpus proceedings, application for injunction, application for
preliminary injunction, prohibition and certiorari.

Jurisdiction of the Court?

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. 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.

Separation of Powers

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. 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
ANS
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.

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. But, in the leading case of Ex parte United States), 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.

In the case of Director of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also
reached the conclusion that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in the
judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not lie within the power of the
courts to grant such suspensions." 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.

REQUISITES OF JUDICIAL REVIEW

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. Vera, however, acting as judge of the court below, declined
to pass upon the question on the ground that the private prosecutor, not being a party whose rights are affected by the statute,
may not raise said question. The respondent judge 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", proceeded on the assumption that Act No. 4221 is constitutional.

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. 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.

Issue of Constitutionality must be raised at earliest opportunity

If not raised in the trial court, it will not considered on appeal. 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
ANS
should be presented. 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. 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. 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.

Legal Standing

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 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.

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.

Issue of Constituionality is the Lis Mota of the Case

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. It has been held that the determination of a constitutional question is necessary whenever it is essential to the decision of
the case as where the right of a party is founded solely on a statute the validity of which is attacked. There is no doubt that the
respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed.

Actual Case or Controversy

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.

(2) Whether Act No. 4221 is unconstitutional as its constitutes an undue delegation of legislative power?

NON-DELEGABILITY

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 its
jurisdiction, and is supreme within its own sphere.

The power to make laws — the legislative power — is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a
unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature
or the National Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority.

ANS
Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. It
has since become an accepted corollary of the principle of separation of powers. 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." 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." 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.

EXCEPTION TO NON-DELEGABILITY AND TEST (COMPLETENESS AND SUFFICIENCY)

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. "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." 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. Courts have also sustained
the delegation of legislative power to the people at large. Some authorities maintain that this may not be done. 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 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.
Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the
Constitution of the Philippines provides that "The National Assembly may by law authorize the President, subject to such
limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage and
wharfage dues." And section 16 of the same article of the Constitution provides that "In times of war or other national
emergency, the National Assembly may by law authorize the President, for a limited period and subject to such restrictions as it
may 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. (Completeness Test) 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.

ANS
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
in the statute, to aid the delegate in exercising the granted discretion. (Sufficiency Test)

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.

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.

DELAGATION OF ASCERTAINING OF FACTS OR CONTINGENCIES IS ALLOWED

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, the Supreme Court of the United State ruled that the legislature may delegate a power not legislative
which it may itself rightfully exercise. 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.

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, 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." In Miller vs. Mayer, etc, 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."

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.
ANS
SUSPENDING THE OPERATION OF THE LAW CAN ONLY BE MADE BY THE LEGISLATURE

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 its authority. Thus, section 28, article I of the Constitution of Texas provides that "No power of suspending laws in this state
shall be exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation
of the laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions of this sort do not
confer absolute power of suspension upon the legislature. While it may be undoubted that the legislature may suspend a law, or
the execution or operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be enjoyed by
others. The suspension must be general, and cannot be made for individual cases or for particular localities.

While it is True that 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. 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."

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.

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." 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. 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.

ANS