G.R. No.
L-45685             November 16, 1937 length of time spent by the court as well as in
THE PEOPLE OF THE PHILIPPINE ISLANDS
and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,  judgment of conviction sentencing the
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 plaintiff and
the offended party, and the respondent herein
Mariano Cu Unjieng is one of the defendants,
in the criminal case entitled "The People of the
Philippine Islands vs. Mariano Cu Unjieng, et
al.", criminal case No. 42649 of the Court of
First Instance of Manila and G.R. No. 41200 of
this court. Respondent herein, Hon. Jose O.
Vera, is the Judge ad interim of the seventh
branch of the Court of First Instance of Manila,
who heard the application of the defendant
Mariano Cu Unjieng for probation in the
aforesaid criminal case.
The information in the aforesaid criminal case
was filed with the Court of First Instance of
Manila on October 15, 1931, petitioner herein
Hongkong and Shanghai Banking Corporation
intervening in the case as private prosecutor.
After a protracted trial unparalleled in the
annals of Philippine jurisprudence both in the
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
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 of prision
mayor, but affirmed the judgment in all other
respects. Mariano Cu Unjieng filed a motion for
reconsideration and four successive motions
for new trial which were denied on December
17, 1935, and final judgment was accordingly
entered on December 18, 1935. The defendant
thereupon sought to have the case elevated
on certiorari to the Supreme Court of the
United States but the latter denied the petition
for certiorari in             November, 1936. This
court, on             November 24, 1936, denied
the petition subsequently filed by the defendant
for leave to file a second alternative motion for
reconsideration or new trial and thereafter
remanded the case to the court of origin for
execution of the judgment.
The instant proceedings have to do with the
application for probation filed by the herein
respondent Mariano Cu Unjieng on            
November 27, 1936, before the trial court,
under the provisions of Act No. 4221 of the
defunct Philippine Legislature. Herein
respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the
crime of which he was convicted, that he has
no criminal record and that he would observe
good conduct in the future. The Court of First
Instance of Manila, Judge Pedro Tuason
presiding, referred the application for probation
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 curiae aforementioned,
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
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. 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 legislative power
and a denial of the equal protection of the laws.
On October 9, 1937, two memorandums,
signed jointly by the City Fiscal and the
Solicitor-General, acting in behalf of the People
of the Philippine Islands, and by 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 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 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).
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 circumstances 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 position 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 mandamus proceedings (see, also, 12 C. J.,
p. 783); and in Government of the Philippine
Islands vs. Springer ([1927], 50 Phil., 259
[affirmed in Springer vs. Government of the
Philippine Islands (1928), 277 U. S., 189; 72
Law. ed., 845]), this court declared an act of
the legislature unconstitutional in an action
of quo warranto brought in the name of the
Government of the Philippines. It has also
been held that the constitutionality of a statute
may be questioned in habeas
corpus proceedings (12 C. J., p. 783; Bailey
on Habeas Corpus, Vol. I, pp. 97, 117),
although there are authorities to the contrary;
on an application for injunction to restrain
action under the challenged statute
(mandatory, see Cruz vs. Youngberg [1931],
56 Phil., 234); and even on an application for
preliminary injunction where the determination
of the constitutional question is necessary to a
decision of the case. (12 C. J., p. 783.) The
same may be said as
regards prohibition and certiorari.(Yu Cong
Eng vs. Trinidad [1925], 47 Phil., 385; [1926],
271 U. S., 500; 70 Law. ed., 1059; Bell vs. First
Judicial District Court [1905], 28 Nev., 280; 81
Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982;
1 L. R. A. [N. S], 843, and cases cited). The
case of Yu Cong Eng vs. Trinidad, supra,
decided by this court twelve years ago was,
like the present one, an original action
for certiorari and prohibition. The
constitutionality of Act No. 2972, popularly
known as the Chinese Bookkeeping Law, was
there challenged by the petitioners, and the
constitutional issue was 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 parte Young (209
U. S., 123;52 Law ed., 714; 13 L. R. A.
[N. S.] 932; 28 Sup. Ct. Rep., 441; 14
Ann. Ca., 764; Traux vs. Raich, 239 U.
S., 33; 60 Law. ed., 131; L. R. A. 1916D,
545; 36 Sup. Ct. Rep., 7; Ann. Cas.,
1917B, 283; and Wilson vs. New, 243 U.
S., 332; 61 Law. ed., 755; L. R. A.
1917E, 938; 37 Sup. Ct. Rep., 298; Ann.
Cas. 1918A, 1024). Although objection
to the jurisdiction was raise by demurrer
to 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 authority, 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 judge cited Cooley
on Constitutional Limitations (Vol. I, p. 339; 12
C. J., sec. 177, pp. 760 and 762), and McGlue
vs. Essex County ([1916], 225 Mass., 59; 113
N. E., 742, 743), as authority for the
proposition that a court will 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 proceedings to test the right of the
respondents to renew a mining corporation,
alleging that the statute under which the
respondents base their right was
unconstitutional because it impaired the
obligation of contracts. The capacity of the
chief law officer of the state to question the
constitutionality of the statute was itself
questioned. Said the Supreme Court of
Michigan, through Champlin, J.:
. . . The idea seems to be that the
people are estopped from questioning
the validity of a law enacted by their
representatives; that to an accusation by
the people of Michigan of usurpation
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 legislature and the
respondents are not the only parties in
interest upon such constitutional
questions. As was remarked by Mr.
Justice Story, in speaking of an
acquiescence by a party affected by an
unconstitutional act of the legislature:
"The people have a deep and vested
interest in maintaining all the
constitutional limitations upon the
exercise of legislative powers." (Allen
vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158
Pac., 38, 40), an original action (mandamus)
was brought by the Attorney-General of
Kansas to test the constitutionality of a statute
of the state. In disposing of the question
whether or not the state may bring the action,
the Supreme Court of Kansas said:
. . . the state is a proper party — indeed,
the proper party — to bring this action.
The state is always interested where the
integrity of its Constitution or statutes is
involved.
"It has an interest in
seeing that the will of the
Legislature is not
disregarded, and need not,
as an individual plaintiff
must, show grounds of
fearing more specific
injury. (State vs. Kansas
City 60 Kan., 518 [57 Pac.,
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 file a bill of
information charging a person with a
violation of the statute. In other words, a
judge should not judicially declare a
statute unconstitutional until the
question of constitutionality is tendered
for decision, and unless it must be
decided in order to determine the right
of a party litigant. State ex rel. Nicholls,
Governor, etc., is authority for the
proposition merely that an officer on
whom a statute imposes the duty of
enforcing its provisions cannot avoid the
duty upon the ground that he considers
the statute unconstitutional, and hence
in enforcing the statute he is immune
from responsibility if the statute be
unconstitutional. State ex rel. Banking
Co., etc., is authority for the proposition
merely that executive officers, e.g., the
state auditor and state treasurer, should
not decline to perform ministerial duties
imposed upon them by a statute, on the
ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to
enforce the criminal laws of the state,
and, above all, to support the
Constitution of the state. If, in the
performance of his duty he finds two
statutes in conflict with each other, or
one which repeals another, and if, in his
judgment, one of the two statutes is
unconstitutional, it is his duty to enforce
the other; and, in order to do so, he is
compelled to submit to the court, by way
of a plea, that one of the statutes is
unconstitutional. If it were not so, the
power of the Legislature would be free
from constitutional limitations in the
enactment of criminal laws.
The respondents do not seem to doubt
seriously the correctness of the general
proposition that the state may impugn the
validity of its laws. They have not cited any
authority running clearly in the opposite
direction. In fact, they appear to have
proceeded on the assumption that the rule as
stated is sound but that it has no application in
the present case, nor may it be invoked by the
City Fiscal in behalf of the People of the
Philippines, one of the petitioners herein, the
principal reasons being that the validity 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
its application outside said city. (Additional
memorandum of respondents, October 23,
1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been
repeatedly relied upon 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 protection of the laws.
1. Section 21 of the Act of Congress of August
29, 1916, commonly known as the Jones Law,
in force at the time of the approval of Act No.
4221, otherwise known as the Probation Act,
vests in the Governor-General of the
Philippines "the exclusive power to grant
pardons and reprieves and remit fines and
forfeitures". This power is now vested in the
President of the Philippines. (Art. VII, sec. 11,
subsec. 6.) The provisions of the Jones Law
and the Constitution differ in some respects.
The adjective "exclusive" found in the Jones
Law has been omitted from the Constitution.
Under the Jones Law, as at common law,
pardon could be granted any time after the
commission of the offense, either before or
after conviction (Vide Constitution of the United
States, Art. II, sec. 2; In re Lontok [1922], 43
Phil., 293). The Governor-General of the
Philippines was thus empowered, like the
President of the United States, to pardon a
person before the facts of the case were fully
brought to light. The framers of our Constitution
thought this undesirable and, following most of
the state constitutions, provided that the
pardoning power can only be exercised "after
conviction". So, too, under the new
Constitution, the pardoning power does not
extend to "cases of impeachment". This is also
the rule generally followed in the United States
(Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There,
a royal pardon can not be pleaded in bar of an
impeachment; "but," says Blackstone, "after
the impeachment has been solemnly heard
and determined, it is not understood that the
king's royal grace is further restrained or
abridged." (Vide, Ex parte Wells [1856], 18
How., 307; 15 Law. ed., 421; Com. vs.
Lockwood [1872], 109 Mass., 323; 12 Am.
Rep., 699; Sterling vs. Drake [1876], 29 Ohio
St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on
impeachment is not confined to mere "removal
from office and disqualification to hold and
enjoy any office of honor, trust, or profit under
the Government" (Art. IX, sec. 4, Constitution
of the Philippines) but extends to the whole
punishment attached by law to the offense
committed. The House of Lords, on a
conviction may, by its sentence, inflict capital
punishment, perpetual banishment, perpetual
banishment, fine or imprisonment, depending
upon the gravity of the offense committed,
together with removal from office and
incapacity to hold office. (Com. vs.
Lockwood, supra.) Our Constitution also
makes specific mention of "commutation" and
of the power of the executive to impose, in the
pardons he may grant, such conditions,
restrictions and limitations as he may deem
proper. Amnesty may be granted by the
President under the Constitution but only with
the concurrence of the National Assembly. We
need not dwell at length on the significance of
these fundamental changes. It is sufficient for
our purposes to state that the pardoning power
has remained essentially the same. The
question is: Has the pardoning power of the
Chief Executive under the Jones Law been
impaired by the Probation Act?
As already stated, the Jones Law vests the
pardoning power exclusively in the Chief
Executive. The exercise of the power may not,
therefore, be vested in anyone else. 
". . . The benign prerogative of mercy reposed
in the executive cannot be taken away nor
fettered by any legislative restrictions, nor can
like power be given by the legislature to any
other officer or authority. The coordinate
departments of government have nothing to do
with the pardoning power, since no person
properly belonging to one of the departments
can exercise any powers appertaining to either
of the others except in cases expressly
provided for by the constitution." (20 R.C.L.,
pp., , 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,
also, Re Giannini [1912], 18 Cal App., 166; 122
Pac., 831.)
Probation and pardon are not coterminous; nor
are they the same. They are actually 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 applicable
to the offense. The executive act of
pardon, on the contrary, is against the
criminal law, which binds and directs the
judges, or rather is outside of and above
it. There is thus no conflict with the
pardoning power, and no possible
unconstitutionality of the Probation Act
for this cause. (Archer vs. Snook [1926],
10 F. [2d], 567, 569.)
Probation should also be distinguished from
reprieve and from commutation of the
sentence. Snodgrass vs. State ([1912], 67 Tex.
Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150
S. W., 162), is relied upon 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],  [1908], 11 Phil., 327.) This court posits the
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 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. 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
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 authorities maintain that this may
not be done (12 C. J., pp. 841, 842; 6 R. C. L.,
p. 164, citing People vs. Kennedy [1913], 207
N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C,
616). However, the question of whether or not
a state has ceased to be republican in form
because of its adoption of the initiative and
referendum has been held not to be a judicial
but a political question (Pacific States Tel. &
Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56
Law. ed., 377; 32 Sup. 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 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. (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. Compañia 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 Phil., 119;
Alegre vs. Collector of Customs [1929], 53
Phil., 394; Cebu Autobus Co. vs. De Jesus
[1931], 56 Phil., 446; U. S. vs. Gomez [1915],
31 Phil., 218; Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660.)
It is 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 its
authority. Thus, section 28, article I of the
Constitution of Texas provides that "No power
of suspending laws in this state shall be
exercised except by the legislature"; and
section 26, article I of the Constitution of
Indiana provides "That the operation of the
laws shall never be suspended, except by
authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute
power of suspension upon the legislature.
While it may be undoubted that the legislature
may suspend a law, or the execution or
operation of a law, a law may not be
suspended as to certain individuals only,
leaving the law to be enjoyed by others. The
suspension must be general, and cannot be
made for individual cases or for particular
localities. In Holden vs. James ([1814], 11
Mass., 396; 6 Am. Dec., 174, 177, 178), it was
said:
By the twentieth article of the
declaration of rights in the constitution of
this commonwealth, it is declared that
the power of suspending the laws, or the
execution of the laws, ought never to be
exercised but by the legislature, or by
authority derived from it, to be exercised
in such particular cases only as the
legislature shall expressly provide for.
Many of the articles in that declaration of
rights were adopted from the Magna
Charta of England, and from the bill of
rights passed in the reign of William and
Mary. The bill of rights contains an
enumeration of the oppressive acts of
James II, tending to subvert and
extirpate the protestant religion, and the
laws and liberties of the kingdom; and
the first of them is the assuming and
exercising a power of dispensing with
and suspending the laws, and the
execution of the laws without consent of
parliament. The first article in the claim
or declaration of rights contained in the
statute is, that the exercise of such
power, by 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 laws, 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 law and in the
conferment of the benefits therein provided,
inequality is not in all cases the necessary
result. But whatever may be the case, it is clear
that 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, if
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 divided or subdivided into
provinces and it needs no argument to show
that if not one of the provinces — and this is
the actual situation now — 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 criminals 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 parties, as
well in their memorandums as in their oral
argument. We have examined the cases
brought to our attention, and others we have
been able to reach in the short time at our
command for the study and deliberation of this
case. In the examination of the cases and in
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
G.R. No. L-34674             October 26, 1931
MAURICIO CRUZ, petitioner-appellant, 
vs.
STANTON YOUNGBERG, Director of the
Bureau of Animal Industry, respondent-
appellee.
Jose Yulo for appellant.
Office of the Solicitor-General Reyes for
appellee.
OSTRAND, J.:
This is a petition brought originally before the
Court of First Instance of Manila for the
issuance of a writ of mandatory injunction
against the respondent, Stanton Youngberg, as
Director of the Bureau of Animal Industry,
requiring him to issue a permit for the landing
of ten large cattle imported by the petitioner
and for the slaughter thereof. The petitioner
attacked the constitutionality of Act No. 3155,
which at present prohibits the importation of
cattle from foreign countries into the Philippine
Islands.
Among other things in the allegation of the
petition, it is asserted that "Act No. 3155 of the
Philippine Legislature was enacted for the sole
purpose of preventing the introduction of cattle
diseases into the Philippine Islands from
foreign countries, as shown by an explanatory
note and text of Senate Bill No. 328 as
introduced in the Philippine Legislature, ... ."
The Act in question reads as follows:
SECTION 1. After March thirty-first,
nineteen hundred and twenty-five
existing contracts for the importation of
cattle into this country to the contrary
notwithstanding, it shall be strictly
prohibited to import, bring or introduce
into the Philippine Islands any cattle
from foreign countries: Provided,
however, That at any time after said
date, the Governor-General, with the
concurrence of the presiding officers of
both Houses, may raise such prohibition
entirely or in part if the conditions of the
country make this advisable or if
decease among foreign cattle has
ceased to be a menace to the
agriculture and live stock of the lands.
SEC. 2. All acts or parts of acts
inconsistent with this Act are hereby
repealed.
SEC. 3. This Act shall take effect on its
approval.
Approved, March 8, 1924.
The respondent demurred to the petition on the
ground that it did not state facts sufficient to
constitute a cause of action. The demurrer was
based on two reasons, namely, (1) that if Act
No. 3155 were declared unconstitutional and
void, the petitioner would not be entitled to the
relief demanded because Act No. 3052 would
automatically become effective and would
prohibit the respondent from giving the permit
prayed for; and (2) that Act No. 3155 was
constitutional and, therefore, valid.
The court sustained the demurrer and the
complaint was dismissed by reason of the
failure of the petitioner to file another
complaint. From that order of dismissal, the
petitioner appealed to this court.
The appellee contends that even if Act No.
3155 be declared unconstitutional by the fact
alleged by the petitioner in his complaint, still
the petitioner can not be allowed to import
cattle from Australia for the reason that, while
Act No. 3155 were declared unconstitutional,
Act No. 3052 would automatically become
effective. Act No. 3052 reads as follows:
SECTION 1. Section seventeen
hundred and sixty-two of Act Numbered
Twenty-seven hundred and eleven,
known as the Administrative Code, is
hereby amended to read as follows:
"SEC. 1762. Bringing of animals
imported from foreign countries
into the Philippine Islands. — It
shall be unlawful for any person
or corporation to import, bring or
introduce live cattle into the
Philippine Islands from any
foreign country. The Director of
Agriculture may, with the
approval of the head of the
department first had, authorize
the importation, bringing or
introduction of various classes of
thoroughbred cattle from foreign
countries for breeding the same
to the native cattle of these
Islands, and such as may be
necessary for the improvement of
the breed, not to exceed five
hundred head per
annum: Provided, however, That
the Director of Agriculture shall in
all cases permit the importation,
bringing or introduction of draft
cattle and bovine cattle for the
manufacture of serum: Provided,
further, That all live cattle from
foreign countries the importation,
bringing or introduction of which
into the Islands is authorized by
this Act, shall be submitted to
regulations issued by the Director
of Agriculture, with the approval
of the head of the department,
prior to authorizing its transfer to
other provinces.
"At the time of the approval of this
Act, the Governor-General shall
issue regulations and others to
provide against a raising of the
price of both fresh and
 refrigerated meat. The Governor-
General also may, by executive
order, suspend, this prohibition
for a fixed period in case local
conditions require it."
SEC. 2. This Act shall take effect six
months after approval.
Approved, March 14, 1922.
The petitioner does not present any allegations
in regard to Act No. 3052 to show its nullity or
unconstitutionality though it appears clearly
that in the absence of Act No. 3155 the former
act would make it impossible for the Director of
the Bureau of Animal Industry to grant the
petitioner a permit for the importation of the
cattle without the approval of the head of the
corresponding department.
An unconstitutional statute can have no
effect to repeal former laws or parts of
laws by implication, since, being void, it
is not inconsistent with such former
laws. (I Lewis Sutherland, Statutory
Construction 2nd ed., p. 458, citing
McAllister vs. Hamlin, 83 Cal., 361; 23
Pac., 357; Orange Country vs. Harris,
97 Cal., 600; 32 Pac., 594; Carr vs.
State, 127 Ind., 204; 11 L.R.A., 370,
etc.)
This court has several times declared that it will
not pass upon the constitutionality of statutes
unless it is necessary to do so (McGirr vs.
Hamilton and Abreu, 30 Phil., 563, 568; Walter
E. Olsen & Co. vs. Aldanese and Trinidad, 43
Phil., 259) but in this case it is not necessary to
pass upon the validity of the statute attacked
by the petitioner because even if it were
declared unconstitutional, the petitioner would
not be entitled to relief inasmuch as Act No.
3052 is not in issue.
But aside from the provisions of Act No. 3052,
we are of the opinion that Act No. 3155 is
entirely valid. As shown in paragraph 8 of the
amended petition, the Legislature passed Act
No. 3155 to protect the cattle industry of the
country and to prevent the introduction of cattle
diseases through importation of foreign cattle.
It is now generally recognized that the
promotion of industries affecting the public
welfare and the development of the resources
of the country are objects within the scope of
the police power (12 C.J., 927; 6 R.C.L., 203-
206 and decisions cited therein; Reid vs.
Colorado, 187 U.S., 137, 147, 152; Yeazel vs.
Alexander, 58 Ill., 254). In this connection it is
said in the case of Punzalan vs. Ferriols and
Provincial Board of Batangas (19 Phil., 214),
that the provisions of the Act of Congress of
July 1, 1902, did not have the effect of denying
to the Government of the Philippine Islands the
right to the exercise of the sovereign police
power in the promotion of the general welfare
and the public interest. The facts recited in
paragraph 8 of the amended petition shows
that at the time the Act No. 3155 was
promulgated there was reasonable necessity
therefor and it cannot be said that the
Legislature exceeded its power in passing the
Act. That being so, it is not for this court to
avoid or vacate the Act upon constitutional
grounds nor will it assume to determine
whether the measures are wise or the best that
might have been adopted. (6 R.C.L., 243 and
decisions cited therein.)1awphil.net
In his third assignment of error the petitioner
claims that "The lower court erred in not
holding that the power given by Act No. 3155
to the Governor-General to suspend or not, at
his discretion, the prohibition provided in the
act constitutes an unlawful delegation of the
legislative powers." We do not think that such
is the case; as Judge Ranney of the Ohio
Supreme Court in Cincinnati, Wilmington and
Zanesville Railroad Co. vs. Commissioners of
Clinton County (1 Ohio St., 77, 88) said in such
case:
The true distinction, therefore, 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.
Under his fourth assignment of error the
appellant argues that Act No. 3155 amends
section 3 of the Tariff Law, but it will be noted
that Act No. 3155 is not an absolute prohibition
of the importation of cattle and it does not add
any provision to section 3 of the Tariff Law. As
stated in the brief of the Attorney-General: "It is
a complete statute in itself. It does not make
any reference to the Tariff Law. It does not
permit the importation of articles, whose
importation is prohibited by the Tariff Law. It is
not a tariff measure but a quarantine measure,
a statute adopted under the police power of the
Philippine Government. It is at most a
`supplement' or an `addition' to the Tariff Law.
(See MacLeary vs. Babcock, 82 N.E., 453,
455; 169 Ind., 228 for distinction between
`supplemental' and `amendatory' and O'Pry vs.
U.S., 249 U.S., 323; 63 Law. ed., 626, for
distinction between `addition' and
`amendment.')"
The decision appealed from is affirmed with the
costs against the appellant. So ordered.
.R. No. 175220               February 12, 2009
WILLIAM C. DAGAN, CARLOS H. REYES,
NARCISO MORALES, BONIFACIO
MANTILLA, CESAR AZURIN, WEITONG LIM,
MA. TERESA TRINIDAD, MA. CARMELITA
FLORENTINO, Petitioners,  When their complaint went unheeded, the
vs.
PHILIPPINE RACING COMMISSION,
MANILA JOCKEY CLUB, INC., and
PHILIPPINE RACING CLUB,
INC.,Respondents.
DECISION
TINGA, J.:
The subject of this petition for certiorari is the
decision1 of the Court of Appeals in CA-G.R.
SP No. 95212, affirming in toto the
judgment2 of the Regional Trial Court of Makati
in Civil Case No. 04-1228.
The controversy stemmed from the 11 August
2004 directive3 issued by the Philippine Racing
Commission (Philracom) directing the Manila
Jockey Club, Inc. (MJCI) and Philippine Racing
Club, Inc. (PRCI) to immediately come up with
their respective Clubs’ House Rule to address
Equine Infectious Anemia (EIA)4 problem and
to rid their facilities of horses infected with EIA.
Said directive was issued pursuant to
Administrative Order No. 55 dated 28 March
1994 by the Department of Agriculture
declaring it unlawful for any person, firm or
corporation to ship, drive, or transport horses
from any locality or place except when
accompanied by a certificate issued by the
authority of the Director of the Bureau of
Animal Industry (BAI).6
In compliance with the directive, MJCI and
PRCI ordered the owners of racehorses stable
in their establishments to submit the horses to
blood sampling and administration of the
Coggins Test to determine whether they are
afflicted with the EIA virus. Subsequently, on
17 September 2004, Philracom issued copies
of the guidelines for the monitoring and
eradication of EIA.7
Petitioners and racehorse owners William
Dagan (Dagan), Carlos Reyes, Narciso
Morales, Bonifacio Montilla, Cezar Azurin,
Weitong Lim, Ma. Teresa Trinidad and Ma.
Carmelita Florentino refused to comply with the
directive. First, they alleged that there had
been no prior consultation with horse owners.
Second, they claimed that neither official
guidelines nor regulations had been issued
relative to the taking of blood samples. And
third, they asserted that no documented case
of EIA had been presented to justify the
undertaking.8
Despite resistance from petitioners, the blood
testing proceeded. The horses, whose owners
refused to comply were banned from the races,
were removed from the actual day of race,
prohibited from renewing their licenses or
evicted from their stables.
racehorse owners lodged a complaint before
the Office of the President (OP) which in turn
issued a directive instructing Philracom to
investigate the matter.
For failure of Philracom to act upon the
directive of the OP, petitioners filed a petition
for injunction with application for the issuance
of a temporary restraining order (TRO). In an
order9 dated 11 November 2004, the trial court
issued a TRO.
Dagan refused to comply with the directives
because, according to him, the same are unfair
as there are no implementing rules on the
banning of sick horses from races.
Consequently, his horses were evicted from
the stables and transferred to an isolation area.
He also admitted that three of his horses had
been found positive for EIA.10
Confronted with two issues, namely: whether
there were valid grounds for the issuance of a
writ of injunction and whether respondents had
acted with whim and caprice in the
implementation of the contested guideline, the
trial court resolved both queries in the
negative.
The trial court found that most racehorse
owners, except for Dagan, had already
subjected their racehorses to EIA testing. Their
act constituted demonstrated compliance with
the contested guidelines, according to the trial
court. Hence, the acts sought to be enjoined
had been rendered moot and academic.
With respect to the subject guidelines, the trial
court upheld their validity as an exercise of
police power, thus:
The Petitioner’s submission that the subject
guidelines are oppressive and hence
confiscatory of proprietary rights is likewise
viewed by this Court to be barren of factual and
legal support. The horseracing industry,
needless to state, is imbued with public interest
deserving of utmost concern if not constant
vigilance. The Petitioners do not dispute this. It
is because of this basic fact that respondents
are expected to police the concerned
individuals and adopt measures that will
promote and protect the interests of all the
stakeholders starting from the moneyed horse-
owners, gawking bettors down to the lowly
maintainers of the stables. This is a clear and
valid exercise of police power with the
respondents acting for the State. Participation
in the business of horseracing is but a
privilege; it is not a right. And no clear
acquiescence to this postulation can there be
than the Petitioners' own undertaking to abide
by the rules and conditions issued and
imposed by the respondents as specifically
shown by their contracts of lease with
MCJI.111avvphi1
Petitioners appealed to the Court of Appeals.
In its Decision dated 27 October 2006, the
appellate court affirmed in toto the decision of
the trial court.
The appellate court upheld the authority of
Philracom to formulate guidelines since it is
vested with exclusive jurisdiction over and
control of the horse-racing industry per Section
8 of Presidential Decree (P.D.) No. 8. The
appellate court further pointed out that P.D. No.
420 also endows Philracom with the power to
prescribe additional rules and regulations not
otherwise inconsistent with the said
12
presidential decree  and to perform such
duties and exercise all powers incidental or
necessary to the accomplishment of its aims
and objectives.13 It similarly concluded that the
petition for prohibition should be dismissed on
the ground of mootness in light of evidence
indicating that petitioners had already
reconsidered their refusal to have their horses
tested and had, in fact, subsequently
requested the administration of the test to the
horses.14
Aggrieved by the appellate court’s decision,
petitioners filed the instant certiorari
petition15 imputing grave abuse of discretion on
the part of respondents in compelling
petitioners to subject their racehorses to blood
testing.
In their amended petition,16 petitioners allege
that Philracom’s unsigned and undated
implementing guidelines suffer from several
infirmities. They maintain that the assailed
guidelines do not comply with due process
requirements. Petitioners insist that racehorses
already in the MJCI stables were allowed to be
so quartered because the individual horse
owners had already complied with the
Philracom regulation that horses should not
bear any disease. There was neither a
directive nor a rule that racehorses already
lodged in the stables of the racing clubs should
again be subjected to the collection of blood
samples preparatory to the conduct of the EIA
tests,17petitioners note. Thus, it came as a
surprise to horse owners when told about the
administration of a new Coggins Tests on old
horses since the matter had not been taken up
with them.18 No investigation or at least a
summary proceeding was conducted affording
petitioners an opportunity to be
heard.19 Petitioners also aver that the assailed
guidelines are ultra vires in that the sanctions
imposed for refusing to submit to medical
examination are summary eviction from the
stables or arbitrary banning of participation in
the races, notwithstanding the penalties
prescribed in the contract of lease.20
In its Comment,21 the PRCI emphasizes that it
merely obeyed the terms of its franchise and
abided by the rules enacted by
Philracom.22 For its part, Philracom, through
the Office of the Solicitor-General (OSG),
stresses that the case has become moot and
academic since most of petitioners had
complied with the guidelines by subjecting their
race horses to EIA testing. The horses found
unafflicted with the disease were eventually
allowed to join the races.23 Philracom also
justified its right under the law to regulate horse
racing.24 MJCI adds that Philracom need
not delegate its rule-making power to the
former since MJCI’s right to formulate its
internal rules is subsumed under the franchise
granted to it by Congress.25
In their Reply,26 petitioners raise for the first
time the issue that Philracom had
unconstitutionally delegated its rule-making
power to PRCI and MJCI in issuing the
directive for them to come up with club rules. In
response to the claim that respondents had
merely complied with their duties under their
franchises, petitioners counter that the power
granted to PRCI and MJCI under their
respective franchises is limited to: (1) the
construction, operation and maintenance of
racetracks; (2) the establishment of branches
for booking purposes; and (3) the conduct of
horse races.
It appears on record that only Dagan had
refused to comply with the orders of
respondents. Therefore, the case subsists as
regards Dagan.
Petitioners essentially assail two issuances of
Philracom; namely: the Philracom
directive27 and the subsequent guidelines
addressed to MJCI and PRCI.
The validity of an administrative issuance, such
as the assailed guidelines, hinges on
compliance with the following requisites:
1. Its promulgation must be authorized
by the legislature;
2. It must be promulgated in accordance
with the prescribed procedure;
3. It must be within the scope of the
authority given by the legislature;
4. It must be reasonable.28
All the prescribed requisites are met as regards
the questioned issuances. Philracom’s
authority is drawn from P.D. No. 420. The
delegation made in the presidential decree is
valid. Philracom did not exceed its authority.
And the issuances are fair and reasonable.
The rule is that what has been delegated
cannot be delegated, or as expressed in the
Latin maxim: potestas delegate non delegare
potest. This rule is based upon the ethical
principle that such 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.29 This rule however admits of
recognized exceptions30 such as the grant of
rule-making power to administrative agencies.
They have been granted by Congress with the
authority to issue rules to regulate the
implementation of a law entrusted to them.
Delegated rule-making has become a practical
necessity in modern governance due to the
increasing complexity and variety of public
functions.31
However, in every case of permissible
delegation, there must be a showing that the
delegation itself is valid. It is valid only if the
law (a) is complete in itself, setting forth therein
the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a
standard—the limits of which are sufficiently
determinate and determinable—to which the
delegate must conform in the performance of
his functions. A sufficient standard is one which
defines legislative policy, marks its limits, maps
out its boundaries and specifies the public
agency to apply it. It indicates the
circumstances under which the legislative
command is to be effected.32
P.D. No. 420 hurdles the tests of completeness
and standards sufficiency.
Philracom was created for the purpose of
carrying out the declared policy in Section 1
which is "to promote and direct the accelerated
development and continued growth of horse
racing not only in pursuance of the sports
development program but also in order to
insure the full exploitation of the sport as a
source of revenue and employment."
Furthermore, Philracom was granted exclusive
jurisdiction and control over every aspect of the
conduct of horse racing, including the framing
and scheduling of races, the construction and
safety of race tracks, and the security of racing.
P.D. No. 420 is already complete in itself.
Section 9 of the law fixes the standards and
limitations to which Philracom must conform in
the performance of its functions, to wit:
Section 9. Specific Powers. Specifically, the
Commission shall have the power:
a. To enforce all laws, decrees and
executive orders relating to horse-racing
that are not expressly or implied
repealed or modified by this Decree,
including all such existing rules and
regulations until otherwise modified or
amended by the Commission;
b. To prescribe additional rules and
regulations not otherwise inconsistent
with this Decree;
c. To register race horses, horse owners
or associations or federations thereof,
and to regulate the construction of race
tracks and to grant permit for the holding
of races;
d. To issue, suspend or revoke permits
and licenses and to impose or collect
fees for the issuance of such licenses
and permits to persons required to
obtain the same;
e. To review, modify, approve or
disapprove the rules and regulations
issued by any person or entity
concerning the conduct of horse races
held by them;
f. To supervise all such race meeting to
assure integrity at all times. It can order
the suspension of any racing event in
case of violation of any law, ordinance
or rules and regulations;
g. To prohibit the use of improper
devices, drugs, stimulants or other
means to enhance or diminish the
speed of horse or materially harm their
condition;
h. To approve the annual budget of the
omission and such supplemental
budgets as may be necessary;
i. To appoint all personnel, including an
Executive Director of the Commission,
as it may be deem necessary in the
exercise and performance of its powers
and duties; and
j. To enter into contracts involving
obligations chargeable to or against the
funds of the Commission. (Emphasis
supplied)
Clearly, there is a proper legislative delegation
of rule-making power to Philracom. Clearly too,
for its part Philracom has exercised its rule-
making power in a proper and reasonable
manner. More specifically, its discretion to rid
the facilities of MJCI and PRCI of horses
afflicted with EIA is aimed at preserving the
security and integrity of horse races.
Petitioners also question the supposed
delegation by Philracom of its rule-making
powers to MJCI and PRCI.
There is no delegation of power to speak of
between Philracom, as the delegator and MJCI
and PRCI as delegates. The Philracom
directive is merely instructive in character.
Philracom had instructed PRCI and MJCI to
"immediately come up with Club’s House Rule
to address the problem and rid their facilities of
horses infected with EIA." PRCI and MJCI
followed-up when they ordered the racehorse
owners to submit blood samples and subject
their race horses to blood testing. Compliance
with the Philracom’s directive is part of the
mandate of PRCI and MJCI under Sections
133 of R.A. No. 795334 and Sections 135 and
236 of 8407.37
As correctly proferred by MJCI, its duty is not
derived from the delegated authority of
Philracom but arises from the franchise
granted to them by Congress allowing MJCI "to
do and carry out all such acts, deeds and
things as may be necessary to give effect to
the foregoing."38 As justified by PRCI, "obeying
the terms of the franchise and abiding by
whatever rules enacted by Philracom is its
duty."39
More on the second, third and fourth requisites.
As to the second requisite, petitioners raise
some infirmities relating to Philracom’s
guidelines. They question the supposed
belated issuance of the guidelines, that is, only
after the collection of blood samples for the
Coggins Test was ordered. While it is
conceded that the guidelines were issued a
month after Philracom’s directive, this
circumstance does not render the directive nor
the guidelines void. The directive’s validity and
effectivity are not dependent on any
supplemental guidelines. Philracom has every
right to issue directives to MJCI and PRCI with
respect to the conduct of horse racing, with or
without implementing guidelines.
Petitioners also argue that Philracom’s
guidelines have no force and effect for lack of
publication and failure to file copies with the
University of the Philippines (UP) Law Center
as required by law.
As a rule, the issuance of rules and regulations
in the exercise of an administrative agency of
its quasi-legislative power does not require
notice 7and hearing.40 In Abella, Jr. v. Civil
Service Commission,41 this Court had the
occasion to rule that prior notice and hearing
are not essential to the validity of rules or
regulations issued in the exercise of quasi-
legislative powers since there is no
determination of past events or facts that have
to be established or ascertained.42
The third requisite for the validity of an
administrative issuance is that it must be within
the limits of the powers granted to it. The
administrative body may not make rules and
regulations which are inconsistent with the
provisions of the Constitution or a statute,
particularly the statute it is administering or
which created it, or which are in derogation of,
or defeat, the purpose of a statute.43
The assailed guidelines prescribe the
procedure for monitoring and eradicating EIA.
These guidelines are in accord with
Philracom’s mandate under the law to regulate
the conduct of horse racing in the country.
Anent the fourth requisite, the assailed
guidelines do not appear to be unreasonable or
discriminatory. In fact, all horses stabled at the
MJCI and PRCI’s premises underwent the
same procedure. The guidelines implemented
were undoubtedly reasonable as they bear a
reasonable relation to the purpose sought to be
accomplished, i.e., the complete riddance of
horses infected with EIA.
It also appears from the records that MJCI
properly notified the racehorse owners before
the test was conducted.44Those who failed to
comply were repeatedly warned of certain
consequences and sanctions.
Furthermore, extant from the records are
circumstances which allow respondents to
determine from time to time the eligibility of
horses as race entries. The lease contract
executed between petitioner and MJC contains
a proviso reserving the right of the lessor, MJCI
in this case, the right to determine whether a
particular horse is a qualified horse. In addition,
Philracom’s rules and regulations on horse
racing provide that horses must be free from
any contagious disease or illness in order to be
eligible as race entries.
All told, we find no grave abuse of discretion on
the part of Philracom in issuing the contested
guidelines and on the part MJCI and PRCI in
complying with Philracom’s directive.
WHEREFORE, the petition is DISMISSED.
Costs against petitioner William Dagan.
SO ORDERED.
G.R. No. 151908            August 12, 2003
SMART COMMUNICATIONS, INC. (SMART)
and PILIPINO TELEPHONE CORPORATION
(PILTEL), petitioners, 
vs.
NATIONAL TELECOMMUNICATIONS
COMMISSION (NTC), respondent.
x---------------------------------------------------------x
G.R. No. 152063 August 12, 2003
GLOBE TELECOM, INC. (GLOBE) and ISLA
COMMUNICATIONS CO., INC.
(ISLACOM), petitioners, 
vs.
COURT OF APPEALS (The Former 6th
Division) and the NATIONAL
TELECOMMUNICATIONS
COMMISSION, respondents.
YNARES-SANTIAGO, J.:
Pursuant to its rule-making and regulatory
powers, the National Telecommunications
Commission (NTC) issued on June 16, 2000
Memorandum Circular No. 13-6-2000,
promulgating rules and regulations on the
billing of telecommunications services. Among
its pertinent provisions are the following:
(1) The billing statements shall be
received by the subscriber of the
telephone service not later than 30 days
from the end of each billing cycle. In
case the statement is received beyond
this period, the subscriber shall have a
specified grace period within which to
pay the bill and the public
telecommunications entity (PTEs) shall
not be allowed to disconnect the service
within the grace period.
(2) There shall be no charge for calls
that are diverted to a voice mailbox,
voice prompt, recorded message or
similar facility excluding the customer's
own equipment.
(3) PTEs shall verify the identification
and address of each purchaser of
prepaid SIM cards. Prepaid call cards
and SIM cards shall be valid for at least
2 years from the date of first use.
Holders of prepaid SIM cards shall be
given 45 days from the date the prepaid
SIM card is fully consumed but not
beyond 2 years and 45 days from date
of first use to replenish the SIM card,
otherwise the SIM card shall be
rendered invalid. The validity of an
invalid SIM card, however, shall be
installed upon request of the customer
at no additional charge except the
presentation of a valid prepaid call card.
(4) Subscribers shall be updated of the
remaining value of their cards before the
start of every call using the cards.
(5) The unit of billing for the cellular
mobile telephone service whether
postpaid or prepaid shall be reduced
from 1 minute per pulse to 6 seconds
per pulse. The authorized rates per
minute shall thus be divided by 10.1
The Memorandum Circular provided that it
shall take effect 15 days after its publication in
a newspaper of general circulation and three
certified true copies thereof furnished the UP
Law Center. It was published in the
newspaper, The Philippine Star, on June 22,
2000.2 Meanwhile, the provisions of the
Memorandum Circular pertaining to the sale
and use of prepaid cards and the unit of billing
for cellular mobile telephone service took effect
90 days from the effectivity of the
Memorandum Circular.
On August 30, 2000, the NTC issued a
Memorandum to all cellular mobile telephone
service (CMTS) operators which contained
measures to minimize if not totally eliminate
the incidence of stealing of cellular phone
units. The Memorandum directed CMTS
operators to:
a. strictly comply with Section B(1) of
MC 13-6-2000 requiring the
presentation and verification of the
identity and addresses of prepaid SIM
card customers;
b. require all your respective prepaid
SIM cards dealers to comply with
Section B(1) of MC 13-6-2000;
c. deny acceptance to your respective
networks prepaid and/or postpaid
customers using stolen cellphone units
or cellphone units registered to
somebody other than the applicant
when properly informed of all
information relative to the stolen
cellphone units;
d. share all necessary information of
stolen cellphone units to all other CMTS
operators in order to prevent the use of
stolen cellphone units; and
e. require all your existing prepaid SIM
card customers to register and present
valid identification cards.3
This was followed by another Memorandum
dated October 6, 2000 addressed to all public
telecommunications entities, which reads:
This is to remind you that the validity of
all prepaid cards sold on 07 October
2000 and beyond shall be valid for at
least two (2) years from date of first use
pursuant to MC 13-6-2000.
In addition, all CMTS operators are
reminded that all SIM packs used by
subscribers of prepaid cards sold on 07
October 2000 and beyond shall be valid
for at least two (2) years from date of
first use. Also, the billing unit shall be on
a six (6) seconds pulse effective 07
October 2000.
For strict compliance.4
On October 20, 2000, petitioners Isla
Communications Co., Inc. and Pilipino
Telephone Corporation filed against the
National Telecommunications Commission,
Commissioner Joseph A. Santiago, Deputy
Commissioner Aurelio M. Umali and Deputy
Commissioner Nestor C. Dacanay, an action
for declaration of nullity of NTC Memorandum
Circular No. 13-6-2000 (the Billing Circular)
and the NTC Memorandum dated October 6,
2000, with prayer for the issuance of a writ of Defendants filed a motion for reconsideration,
preliminary injunction and temporary which was denied in an Order dated February
restraining order. The complaint was docketed 1, 2001.9
as Civil Case No. Q-00-42221 at the Regional
Trial Court of Quezon City, Branch 77.5 Respondent NTC thus filed a special civil
action for certiorari and prohibition with the
Petitioners Islacom and Piltel alleged, inter Court of Appeals, which was docketed as CA-
alia, that the NTC has no jurisdiction to G.R. SP. No. 64274. On October 9, 2001, a
regulate the sale of consumer goods such as decision was rendered, the decretal portion of
the prepaid call cards since such jurisdiction which reads:
belongs to the Department of Trade and
Industry under the Consumer Act of the WHEREFORE, premises considered,
Philippines; that the Billing Circular is the instant petition for certiorari and
oppressive, confiscatory and violative of the prohibition is GRANTED, in that, the
constitutional prohibition against deprivation of order of the court a quo denying the
property without due process of law; that the petitioner's motion to dismiss as well as
Circular will result in the impairment of the the order of the court a quo granting the
viability of the prepaid cellular service by private respondents' prayer for a writ of
unduly prolonging the validity and expiration of preliminary injunction, and the writ of
the prepaid SIM and call cards; and that the preliminary injunction issued thereby,
requirements of identification of prepaid card are hereby ANNULLED and SET
buyers and call balance announcement are ASIDE. The private respondents'
unreasonable. Hence, they prayed that the complaint and complaint-in-intervention
Billing Circular be declared null and void ab below are hereby DISMISSED, without
initio. prejudice to the referral of the private
respondents' grievances and disputes
Soon thereafter, petitioners Globe Telecom, on the assailed issuances of the NTC
Inc and Smart Communications, Inc. filed a with the said agency.
joint Motion for Leave to Intervene and to
Admit Complaint-in-Intervention.6 This was SO ORDERED.10
granted by the trial court.
Petitioners' motions for reconsideration were
On October 27, 2000, the trial court issued a denied in a Resolution dated January 10, 2002
temporary restraining order enjoining the NTC for lack of merit.11
from implementing Memorandum Circular No.
13-6-2000 and the Memorandum dated Hence, the instant petition for review filed by
October 6, 2000.7 Smart and Piltel, which was docketed as G.R.
No. 151908, anchored on the following
In the meantime, respondent NTC and its co- grounds:
defendants filed a motion to dismiss the case
on the ground of petitioners' failure to exhaust A.
administrative remedies.
THE HONORABLE COURT OF
Subsequently, after hearing petitioners' APPEALS GRAVELY ERRED IN
application for preliminary injunction as well as HOLDING THAT THE NATIONAL
respondent's motion to dismiss, the trial court TELECOMMUNICATIONS
issued on November 20, 2000 an Order, the COMMISSION (NTC) AND NOT THE
dispositive portion of which reads: REGULAR COURTS HAS
JURISDICTION OVER THE CASE.
WHEREFORE, premises considered,
the defendants' motion to dismiss is B.
hereby denied for lack of merit. The
plaintiffs' application for the issuance of THE HONORABLE COURT OF
a writ of preliminary injunction is hereby APPEALS ALSO GRAVELY ERRED IN
granted. Accordingly, the defendants HOLDING THAT THE PRIVATE
are hereby enjoined from implementing RESPONDENTS FAILED TO
NTC Memorandum Circular 13-6-2000 EXHAUST AN AVAILABLE
and the NTC Memorandum, dated ADMINISTRATIVE REMEDY.
October 6, 2000, pending the issuance
and finality of the decision in this case. C.
The plaintiffs and intervenors are,
however, required to file a bond in the THE HONORABLE COURT OF
sum of FIVE HUNDRED THOUSAND APPEALS ERRED IN NOT HOLDING
PESOS (P500,000.00), Philippine THAT THE BILLING CIRCULAR
currency. ISSUED BY THE RESPONDENT NTC
IS UNCONSTITUTIONAL AND
SO ORDERED.8
 CONTRARY TO LAW AND PUBLIC The two petitions were consolidated in a
POLICY. Resolution dated February 17, 2003.14

D. On March 24, 2003, the petitions were given

due course and the parties were required to
THE HONORABLE COURT OF submit their respective memoranda.15
APPEALS ERRED IN HOLDING THAT
THE PRIVATE RESPONDENTS We find merit in the petitions.
FAILED TO SHOW THEIR CLEAR
POSITIVE RIGHT TO WARRANT THE Administrative agencies possess quasi-
ISSUANCE OF A WRIT OF legislative or rule-making powers and quasi-
PRELIMINARY INJUNCTION.12 judicial or administrative adjudicatory powers.
Quasi-legislative or rule-making power is the
Likewise, Globe and Islacom filed a petition for power to make rules and regulations which
review, docketed as G.R. No. 152063, results in delegated legislation that is within the
assigning the following errors: confines of the granting statute and the
doctrine of non-delegability and separability of
1. THE HONORABLE COURT OF powers.16
APPEALS SO GRAVELY ERRED
BECAUSE THE DOCTRINES OF The rules and regulations that administrative
PRIMARY JURISDICTION AND agencies promulgate, which are the product of
EXHAUSTION OF ADMINISTRATIVE a delegated legislative power to create new
REMEDIES DO NOT APPLY SINCE and additional legal provisions that have the
THE INSTANT CASE IS FOR LEGAL effect of law, should be within the scope of the
NULLIFICATION (BECAUSE OF statutory authority granted by the legislature to
LEGAL INFIRMITIES AND the administrative agency. It is required that
VIOLATIONS OF LAW) OF A PURELY the regulation be germane to the objects and
ADMINISTRATIVE REGULATION purposes of the law, and be not in contradiction
PROMULGATED BY AN AGENCY IN to, but in conformity with, the standards
THE EXERCISE OF ITS RULE prescribed by law.17 They must conform to and
MAKING POWERS AND INVOLVES be consistent with the provisions of the
ONLY QUESTIONS OF LAW. enabling statute in order for such rule or
regulation to be valid. Constitutional and
2. THE HONORABLE COURT OF statutory provisions control with respect to
APPEALS SO GRAVELY ERRED what rules and regulations may be
BECAUSE THE DOCTRINE ON promulgated by an administrative body, as well
EXHAUSTION OF ADMINISTRATIVE as with respect to what fields are subject to
REMEDIES DOES NOT APPLY WHEN regulation by it. It may not make rules and
THE QUESTIONS RAISED ARE regulations which are inconsistent with the
PURELY LEGAL QUESTIONS. provisions of the Constitution or a statute,
particularly the statute it is administering or
3. THE HONORABLE COURT OF which created it, or which are in derogation of,
APPEALS SO GRAVELY ERRED or defeat, the purpose of a statute. In case of
BECAUSE THE DOCTRINE OF conflict between a statute and an
EXHAUSTION OF ADMINISTRATIVE administrative order, the former must prevail.18
REMEDIES DOES NOT APPLY
WHERE THE ADMINISTRATIVE Not to be confused with the quasi-legislative or
ACTION IS COMPLETE AND rule-making power of an administrative agency
EFFECTIVE, WHEN THERE IS NO is its quasi-judicial or administrative
OTHER REMEDY, AND THE adjudicatory power. This is the power to hear
PETITIONER STANDS TO SUFFER and determine questions of fact to which the
GRAVE AND IRREPARABLE INJURY. legislative policy is to apply and to decide in
accordance with the standards laid down by
4. THE HONORABLE COURT OF the law itself in enforcing and administering the
APPEALS SO GRAVELY ERRED same law. The administrative body exercises
BECAUSE PETITIONERS IN FACT its quasi-judicial power when it performs in a
EXHAUSTED ALL ADMINISTRATIVE judicial manner an act which is essentially of
REMEDIES AVAILABLE TO THEM. an executive or administrative nature, where
the power to act in such manner is incidental to
5. THE HONORABLE COURT OF or reasonably necessary for the performance
APPEALS SO GRAVELY ERRED IN of the executive or administrative duty
ISSUING ITS QUESTIONED RULINGS entrusted to it. In carrying out their quasi-
IN THIS CASE BECAUSE GLOBE AND judicial functions, the administrative officers or
ISLA HAVE A CLEAR RIGHT TO AN bodies are required to investigate facts or
INJUNCTION.13 ascertain the existence of facts, hold hearings,
weigh evidence, and draw conclusions from
them as basis for their official action and
exercise of discretion in a judicial nature.19
In questioning the validity or constitutionality of
a rule or regulation issued by an administrative
agency, a party need not exhaust
administrative remedies before going to court.
This principle applies only where the act of the
administrative agency concerned was
performed pursuant to its quasi-judicial
function, and not when the assailed act
pertained to its rule-making or quasi-legislative
power. In Association of Philippine Coconut
Dessicators v. Philippine Coconut Authority,20 it
was held:
The rule of requiring exhaustion of
administrative remedies before a party may
seek judicial review, so strenuously urged by
the Solicitor General on behalf of respondent,
has obviously no application here. The
resolution in question was issued by the PCA
in the exercise of its rule- making or legislative
power. However, only judicial review of
decisions of administrative agencies made in
the exercise of their quasi-judicial function is
subject to the exhaustion doctrine.
Even assuming arguendo that the principle of
exhaustion of administrative remedies apply in
this case, the records reveal that petitioners
sufficiently complied with this requirement.
Even during the drafting and deliberation
stages leading to the issuance of
Memorandum Circular No. 13-6-2000,
petitioners were able to register their protests
to the proposed billing guidelines. They
submitted their respective position papers
setting forth their objections and submitting
proposed schemes for the billing
circular.21 After the same was issued,
petitioners wrote successive letters dated July
3, 200022 and July 5, 2000,23 asking for the
suspension and reconsideration of the so-
called Billing Circular. These letters were not
acted upon until October 6, 2000, when
respondent NTC issued the second assailed
Memorandum implementing certain provisions
of the Billing Circular. This was taken by
petitioners as a clear denial of the requests
contained in their previous letters, thus
prompting them to seek judicial relief.
In like manner, the doctrine of primary
jurisdiction applies only where the
administrative agency exercises its quasi-
judicial or adjudicatory function. Thus, in cases
involving specialized disputes, the practice has
been to refer the same to an administrative
agency of special competence pursuant to the
doctrine of primary jurisdiction. The courts will
not determine a controversy involving a
question which is within the jurisdiction of the
administrative tribunal prior to the resolution of
that question by the administrative tribunal,
where the question demands the exercise of
sound administrative discretion requiring the
special knowledge, experience and services of
the administrative tribunal to determine
technical and intricate matters of fact, and a
uniformity of ruling is essential to comply with
the premises of the regulatory statute
administered. The objective of the doctrine of
primary jurisdiction is to guide a court in
determining whether it should refrain from
exercising its jurisdiction until after an
administrative agency has determined some
question or some aspect of some question
arising in the proceeding before the court. It
applies where the claim is originally cognizable
in the courts and comes into play whenever
enforcement of the claim requires the
resolution of issues which, under a regulatory
scheme, has been placed within the special
competence of an administrative body; in such
case, the judicial process is suspended
pending referral of such issues to the
administrative body for its view.24
However, where what is assailed is the validity
or constitutionality of a rule or regulation issued
by the administrative agency in the
performance of its quasi-legislative function,
the regular courts have jurisdiction to pass
upon the same. The determination of whether
a specific rule or set of rules issued by an
administrative agency contravenes the law or
the constitution is within the jurisdiction of the
regular courts. Indeed, the Constitution vests
the power of judicial review or the power to
declare a law, treaty, international or executive
agreement, presidential decree, order,
instruction, ordinance, or regulation in the
courts, including the regional trial courts.25 This
is within the scope of judicial power, which
includes the authority of the courts to
determine in an appropriate action the validity
of the acts of the political
26
departments.  Judicial power includes the duty
of the courts of justice to settle actual
controversies involving rights which are legally
demandable and enforceable, and to
determine whether or not there has been a
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch
or instrumentality of the Government.27
In the case at bar, the issuance by the NTC of
Memorandum Circular No. 13-6-2000 and its
Memorandum dated October 6, 2000 was
pursuant to its quasi-legislative or rule-making
power. As such, petitioners were justified in
invoking the judicial power of the Regional Trial
Court to assail the constitutionality and validity
of the said issuances. In Drilon v. Lim,28 it was
held:
We stress at the outset that the lower
court had jurisdiction to consider the
constitutionality of Section 187, this
authority being embraced in the general
definition of the judicial power to
determine what are the valid and
binding laws by the criterion of their
 conformity to the fundamental law.
Specifically, B.P. 129 vests in the
regional trial courts jurisdiction over all
civil cases in which the subject of the
litigation is incapable of pecuniary
estimation, even as the accused in a
criminal action has the right to question
in his defense the constitutionality of a
law he is charged with violating and of
the proceedings taken against him,
particularly as they contravene the Bill of
Rights. Moreover, Article X, Section
5(2), of the Constitution vests in the
Supreme Court appellate jurisdiction
over final judgments and orders of lower
courts in all cases in which the
constitutionality or validity of any treaty,
international or executive agreement,
law, presidential decree, proclamation,
order, instruction, ordinance, or
regulation is in question.29
In their complaint before the Regional Trial
Court, petitioners averred that the Circular
contravened Civil Code provisions on sales
and violated the constitutional prohibition
against the deprivation of property without due
process of law. These are within the
competence of the trial judge. Contrary to the
finding of the Court of Appeals, the issues
raised in the complaint do not entail highly
technical matters. Rather, what is required of
the judge who will resolve this issue is a basic
familiarity with the workings of the cellular
telephone service, including prepaid SIM and
call cards – and this is judicially known to be
within the knowledge of a good percentage of
our population – and expertise in fundamental
principles of civil law and the Constitution.
Hence, the Regional Trial Court has jurisdiction
to hear and decide Civil Case No. Q-00-42221.
The Court of Appeals erred in setting aside the
orders of the trial court and in dismissing the
case.
WHEREFORE, in view of the foregoing, the
consolidated petitions are GRANTED. The
decision of the Court of Appeals in CA-G.R. SP
No. 64274 dated October 9, 2001 and its
Resolution dated January 10, 2002 are
REVERSED and SET ASIDE. The Order dated
November 20, 2000 of the Regional Trial Court
of Quezon City, Branch 77, in Civil Case No.
Q-00-42221 is REINSTATED. This case is
REMANDED to the court a quo for continuation
of the proceedings.
SO ORDERED.
G.R. No. 116422 November 4, 1996
AVELINA B. CONTE and LETICIA BOISER-
PALMA, petitioners,  WHEREAS, SSS employees who
vs.
COMMISSION ON AUDIT (COA), respondent.
 
PANGANIBAN, J.:
Are the benefits provided for under
Social Security System Resolution No.
56 to be considered simply as "financial
assistance" for retiring employees, or
does such scheme constitute a
supplementary retirement plan
proscribed by Republic Act No. 4968?
The foregoing question is addressed by
this Court in resolving the instant
petition for certiorari which seeks to
reverse and set aside Decision No. 94-
1261 dated March 15, 1994 of
respondent Commission on Audit, which
denied petitioners' request for
reconsideration of its adverse ruling
disapproving claims for financial
assistance under SSS Resolution No.
56.
The Facts
Petitioners Avelina B. Conte and Leticia
Boiser-Palma were former employees of
the Social Security System (SSS) who
retired from government service on May
9, 1990 and September 13, 1992,
respectively. They availed of
compulsory retirement benefits under
Republic Act No. 660.2
In addition to retirement benefits
provided under R.A. 660, petitioners
also claimed SSS "financial assistance"
benefits granted under SSS Resolution
No. 56, series of 1971.
A brief historical backgrounder is in
order. SSS Resolution No.
56,3 approved on January 21, 1971,
provides financial incentive and
inducement to SSS employees qualified
to retire to avail of retirement benefits
under RA 660 as amended, rather than
the retirement benefits under RA 1616
as amended, by giving them "financial
assistance" equivalent in amount to the
difference between what a retiree would
have received under RA 1616, less what
he was entitled to under RA 660. The
said SSS Resolution No. 56 states:
RESOLUTION NO. 56
WHEREAS, the retirement
benefits of SSS employees are
provided for under Republic Acts
660 and 1616 as amended;.
are qualified for compulsory
retirement at age 65 or for
optional retirement at a lower age
are entitled to either the life
annuity under R.A. 660, as
amended, or the gratuity under
R.A. 1616, as amended;
WHEREAS, a retirement benefit
to be effective must be a periodic
income as close as possible to
the monthly income that would
have been due to the retiree
during the remaining years of his
life were he still employed;
WHEREAS, the life annuity under
R.A. 660, as amended, being
closer to the monthly income that
was lost on account of old age
than the gratuity under R.A.
1616, as amended, would best
serve the interest of the retiree;
WHEREAS, it is the policy of the
Social Security Commission to
promote and to protect the
interest of all SSS employees,
with a view to providing for their
well-being during both their
working and retirement years;
WHEREAS, the availment of life
annuities built up by premiums
paid on behalf of SSS employees
during their working years would
mean more savings to the SSS;
WHEREAS, it is a duty of the
Social Security Commission to
effect savings in every possible
way for economical and efficient
operations;
WHEREAS, it is the right of every
SSS employee to choose freely
and voluntarily the benefit he is
entitled to solely for his own
benefit and for the benefit of his
family;
NOW, THEREFORE, BE IT
RESOLVED, That all the SSS
employees who are
simultaneously qualified for
compulsory retirement at age 65
or for optional retirement at a
lower age be encouraged to avail
for themselves the life annuity
under R.A. 660, as amended;
RESOLVED, FURTHER, That
SSS employees who availed
themselves of the said life
annuity, in appreciation and
recognition of their long and
faithful service, be
granted financial assistance
equivalent to the gratuity plus
return of contributions under
R.A. 1616, as amended, less the
five year guaranteed annuity
under R.A. 660, as amended;
RESOLVED, FINALLY, That the
Administrator be authorized to act
on all applications for retirement
submitted by SSS employees
and subject to availability of
funds, pay the corresponding
benefits in addition to the money
value of all accumulated leaves.
(emphasis supplied)
Long after the promulgation of SSS
Resolution No. 56, respondent
Commission on Audit (COA) issued a
ruling, captioned as "3rd Indorsement"
dated July 10, 1989,4 disallowing in
audit "all such claims for financial
assistance under SSS Resolution No.
56", for the reason that: —
. . . the scheme of financial
assistance authorized by the SSS
is similar to those separate
retirement plan or
incentive/separation pay plans
adopted by other government
corporate agencies which results
in the increase of benefits
beyond what is allowed under
existing retirement laws. In this
regard, attention . . . is invited to
the view expressed by the
Secretary of Budget and
Management dated February 17,
1988 to the COA General
Counsel against the proliferation
of retirement plans which, in COA
Decision No. 591 dated August
31, 1988, was concurred in by
this Commission. . . .
Accordingly, all such claims for
financial assistance under SSS
Resolution No. 56 dated January
21, 1971 should be disallowed in
audit. (emphasis supplied)
Despite the aforequoted ruling of
respondent COA, then SSS
Administrator Jose L. Cuisia, Jr.
nevertheless wrote5 on February 12,
1990 then Executive Secretary Catalino
Macaraig, Jr., seeking "presidential
authority for SSS to continue
implementing its Resolution No. 56
dated January 21, 1971 granting
financial assistance to its qualified
retiring employees".
However, in a letter-reply dated May 28,
1990,6 then Executive Secretary
Macaraig advised Administrator Cuisia
that the Office of the President "is not
inclined to favorably act on the herein
request, let alone over-rule the
disallowance by COA" of such claims,
because, aside from the fact that
decisions, order or actions of the COA in
the exercise of its audit functions are
appealable to the Supreme
Court7 pursuant to Sec. 50 of PD 1445,
the benefits under said Res. 56, though
referred to as "financial assistance",
constituted additional retirement
benefits, and the scheme partook of the
nature of a supplementary
pension/retirement plan proscribed by
law.
The law referred to above is RA 4968
(The Teves Retirement Law), which took
effect June 17, 1967 and amended CA
186 (otherwise known as the
Government Service Insurance Act, or
the GSIS Charter), making Sec. 28 (b)
of the latter act read as follows:
(b) Hereafter, no insurance or
retirement plan for officers or
employees shall be created by
employer. All supplementary
retirement or pension plans
heretofore in force in any
government office. agency or
instrumentality or corporation
owned or controlled by the
government, are hereby declared
in operative or abolished;
Provided, That the rights of those
who are already eligible to retire
there under shall not be affected."
(emphasis supplied)
On January 12, 1993, herein petitioners
filed with respondent COA their "letter-
appeal/protest"8 seeking reconsideration
of COA's ruling of July 10, 1989
disallowing claims for financial
assistance under Res. 56.
On November 15, 1993, petitioner
Conte sought payment from SSS of the
benefits under Res. 56. On December 9,
1993, SSS Administrator Renato C.
Valencia denied9 the request in
consonance with the previous
disallowance by respondent COA, but
assured petitioner that should the COA
change its position, the SSS will resume
the grant of benefits under said Res. 56.
On March 15, 1994, respondent COA
rendered its COA Decision No. 94-126
denying petitioners' request for
reconsideration.
Thus this petition for certiorari under
Rule 65 of the Rules of Court.
The Issues
The issues10 submitted by petitioners
may be simplified and restated thus: Did
public respondent abuse its discretion
when it disallowed in audit petitioners'
claims for benefits under SSS
Res. 562?
Petitioners argue that the financial
assistance under Res. 56 is not a
retirement plan prohibited by RA 4968,
and that Res. 56 provides benefits
different from and "aside from" what a
retiring SSS employee would be entitled
to under RA 660. Petitioners contend
that it "is a social amelioration and
economic upliftment measure
undertaken not only for the benefit of the
SSS but more so for the welfare of its
qualified retiring employees." As such, it
"should be interpreted in a manner that
would give the . . . most advantage to
the recipient — the retiring employees
whose dedicated, loyal, lengthy and
faithful service to the agency of
government is recognized and amply
rewarded — the rationale for the
financial assistance plan." Petitioners
reiterate the argument in their letter
dated January 12, 1993 to COA that:
Motivation can be in the form of
financial assistance, during their
stay in the service or upon
retirement, as in the SSS
Financial Assistance Plan. This is
so, because Government has to
have some attractive
remuneration programs to
encourage well-qualified
personnel to pursue a career in
the government service, rather
than in the private sector or in
foreign countries . . .
A more developmental view of
the financial institutions' grant of
certain forms of financial
assistance to its personnel, we
believe, would enable
government administrators to see
these financial forms of
remuneration as contributory to
the national developmental
efforts for effective and efficient
administration of the personnel
programs in different
11
institutions.
The Court's Ruling
Petitioners' contentions are not
supported by law. We hold that Res. 56
constitutes a supplementary retirement
plan.
A cursory examination of the
preambular clauses and provisions of
Res. 56 provides a number of clear
indications that its financial assistance
plan constitutes a supplemental
retirement/pension benefits plan. In
particular, the fifth preambular clause
which provides that "it is the policy of the
Social Security Commission to promote
and to protect the interest of all SSS
employees, with a view to providing for
their well-being duringboth their working
and retirement years", and the wording
of the resolution itself which states
"Resolved, further, that SSS employees
who availed themselves of the said life
annuity (under RA 660), in appreciation
and recognition of their long and faithful
service, be granted financial
assistance . . . can only be interpreted to
mean that the benefit being granted is
none other than a kind of amelioration to
enable the retiring employee to enjoy (or
survive) his retirement years and a
reward for his loyalty and service.
Moreover, it is plain to see that the grant
of said financial assistance
is inextricably linked with and
inseparable from the approval of
retirement benefits under RA 660, i.e.,
that availment of said financial
assistance under Res. 56 may not be
done independently of but only in
conjunction with the availment of
retirement benefits under RA 660, and
that the former is in augmentation or
supplementation of the latter benefits.
Likewise, then SSS Administrator
Cuisia's historical overview of the origins
and purpose of Res. 56 is very
instructive and sheds much light on the
controversy:12
Resolution No. 56, . . ., applies
where a retiring SSS employee is
qualified to claim under either RA
660 (pension benefit, that is, 5
year lump sum pension and after
5 years, lifetime pension), or RA
1616 (gratuity benefit plus return
of contribution), at his option. The
benefits under RA 660 are
entirely payable by GSIS while
those under RA 1616 are entirely
shouldered by SSS except the
return of contribution by GSIS.
Resolution No. 56 came about
upon observation that qualified
SSS employees have invariably
opted to retire under RA 1616
instead of RA 660 because the
total benefit under the former is
much greater than the 5-year
lump sum under the latter. As a
consequence, the SSS usually
ended up virtually paying the
entire retirement benefit, instead
of GSIS which is the main
insurance carrier for government
employees. Hence, the situation
has become so expensive for
SSS that a study of the problem
became inevitable.
As a result of the study and upon
the recommendation of its
Actuary, the SSS Management
recommended to the Social
Security Commission that retiring
employees who are qualified to
claim under either RA 660 or
1616 should be "encouraged" to
avail for themselves the life
annuity under RA 660, as
amended, with the SSS providing
a "financial assistance"
equivalent to the difference
between the benefit under RA
1616 (gratuity plus return of
contribution) and the 5-year lump
sum pension under RA 660.
The Social Security Commission,
as the policy-making body of the
SSS approved the
recommendation in line with its
mandate to "insure the efficient,
honest and economical
administration of the provisions
and purposes of this Act. (Section
3 (c) of the Social Security Law).
Necessarily, the situation was
reversed with qualified SSS
employees opting to retire under
RA No. 660 or RA 1146 instead
of RA 1616, resulting in
substantial savings for the SSS
despite its having to pay
"financial assistance".
Until Resolution No. 56 was
questioned by COA. (emphasis
part of original text; emphasis
ours).
Although such financial assistance
package may have been instituted for
noble, altruistic purposes as well as
from self-interest and a desire to cut
costs on the part of the SSS,
nevertheless, it is beyond any dispute
that such package effectively constitutes
a supplementary retirement plan. The
fact that it was designed to equalize the
benefits receivable from RA 1616 with
those payable under RA 660 and make
the latter program more attractive,
merely confirms the foregoing finding.
That the Res. 56 package is labelled
"financial assistance" does not change
its essential nature. Retirement benefits
are, after all, a form of reward for an
employee's loyalty and service to the
employer, and are intended to help the
employee enjoy the remaining years of
his life, lessening the burden of worrying
about his financial support or
13
upkeep.  On the other hand, a pension
partakes of the nature of "retained
wages" of the retiree for a dual purpose:
to entice competent people to enter the
government service, and to permit them
to retire from the service with relative
security, not only for those who have
retained their vigor, but more so for
those who have been incapacitated by
illness or accident.14
Is SSS Resolution No. 56 then within
the ambit of and thus proscribed by Sec.
28 (b) of CA 186 as amended by RA
4968?
We answer in the affirmative. Said Sec.
28 (b) as amended by RA 4968 in no
uncertain terms bars the creation of any
insurance or retirement plan — other
than the GSIS — for government
officers and employees, in order to
prevent the undue and inequitous
proliferation of such plans. It is beyond
cavil that Res. 56 contravenes the said
provision of law and is therefore invalid,
void and of no effect. No ignore this and
rule otherwise would be tantamount to
permitting every other government office
or agency to put up its own
supplementary retirement benefit plan
under the guise of such "financial
assistance".
We are not unmindful of the laudable
purposes for promulgating Res. 56, and
the positive results it must have had, not
only in reducing costs and expenses on
the part of the SSS in connection with
the pay-out of retirement benefits and
gratuities, but also in improving the
quality of life for scores of retirees. But it
is simply beyond dispute that the SSS
had no authority to maintain and
implement such retirement plan,
particularly in the face of the statutory
prohibition. The SSS cannot, in the
guise of rule-making, legislate or amend
laws or worse, render them nugatory.
It is doctrinal that in case of conflict
between a statute and an administrative
order, the former must prevail.15A rule or
regulation must conform to and be
consistent with the provisions of the
enabling statute in order for such rule or
regulation to be valid.16 The rule-making
power of a public administrative body is
a delegated legislative power, which it
may not use either to abridge the
authority given it by the Congress or the
Constitution or to enlarge its power
beyond the scope intended.
Constitutional and statutory provisions
control with respect to what rules and
regulations may be promulgated by
such a body, as well as with respect to
what fields are subject to regulation by
it. It may not make rules and regulations
which are inconsistent with the
provisions of the Constitution or a
statute, particularly the statute it is
administering or which created it, or
which are in derogation of, or defeat, the
purpose of a statute.17 Though well-
settled is the rule that retirement laws
are liberally interpreted in favor of the
retiree,18 nevertheless, there is
really nothing to interpret in either RA
4968 or Res. 56, and correspondingly,
the absence of any doubt as to the ultra-
vires nature and illegality of the disputed
resolution constrains us to rule against
petitioners.
As a necessary consequence of the
invalidity of Res. 56, we can hardly
impute abuse of discretion of any sort to
respondent Commission for denying
petitioners' request for reconsideration
of the 3rd Indorsement of July 10, 1989.
On the contrary, we hold that public
respondent in its assailed Decision
acted with circumspection in denying
petitioners claim. It reasoned thus:
After a careful evaluation of the
facts herein obtaining, this
Commission finds the instant
request to be devoid of merit. It
bears stress that the financial
assistance contemplated under
SSS Resolution No. 56 is granted
to SSS employees who opt to
retire under R.A. No. 660. In fact,
by the aggrieved parties' own
admission (page 2 of the request
for reconsideration dated January
12, 1993), it is a financial
assistance granted by the SSS
management to its employees. in
addition to the retirement benefits
under Republic Act. No. 660."
(underscoring supplied for
emphasis) There is therefore no
question, that the said financial
assistance partakes of the nature
of a retirement benefit that has
the effect of modifying existing
retirement laws particularly R.A.
No. 660.
Petitioners also asseverate that the
scheme of financial assistance under
Res. 56 may be likened to the monetary
benefits of government officials and
employees who are paid, over and
above their salaries and allowances as
provided by statute, an
additional honorarium in varying
amounts. We find this comparison
baseless and misplaced. As clarified by
the Solicitor General:19
Petitioners' comparison of SSS
Resolution No. 56 with the
"honoraria" given to government
officials and employees of the
"National Prosecution Service of
the Department of Justice", Office
of the Government Corporate
Counsel and even in the "Office
of the Solicitor General" is devoid
of any basis. The monetary
benefits or "honoraria" given to
these officials or employees are
categorized as travelling and/or
representation expenses which
are incurred by them in the
course of handling cases,
attending court/administrative
hearings, or performing other
field work. These monetary
benefits are given upon rendition
of service while the "financial
benefits" under SSS Resolution
No. 56 are given upon retirement
from service.
In a last-ditch attempt to convince this
Court that their position is tenable,
petitioners invoke equity. They "believe
that they are deserving of justice and
equity in their quest for financial
assistance under SSS Resolution No.
56, not so much because the SSS is
one of the very few stable agencies of
government where no doubt this
recognition and reputation is earned . . .
but more so due to the miserable scale
of compensation granted to employees
in various agencies to include those
obtaining in the SSS."20
We must admit we sympathize with
petitioners in their financial predicament
as a result of their misplaced decision to
avail of retirement benefits under RA
660, with the false expectation that
"financial assistance" under the disputed
Res. 56 will also materialize.
Nevertheless, this Court has always
held that equity, which has been aptly
described as "justice outside legality," is
applied only in the absence of, and
never against, statutory law or judicial
rules of procedure.21 In this case, equity
cannot be applied to give validity and
effect to Res. 56, which directly
contravenes the clear mandate of the
provisions of RA 4968.
Likewise, we cannot but be aware that
the clear imbalance between the
benefits available under RA 660 and
those under RA 1616 has created an
unfair situation for it has shifted the
burden of paying such benefits from the
GSIS (the main insurance carrier of
government employees) to the SSS.
Without the corrective effects of Res.
56, all retiring SSS employees without
exception will be impelled to avail of
benefits under RA 1616. The cumulative
effect of such availments on the
financial standing and stability of the
SSS is better left to actuarians. But the
solution or remedy for such situation can
be provided only by Congress. Judicial
hands cannot, on the pretext of showing
concern for the welfare of government
employees, bestow equity contrary to
the clear provisions of law.
Nevertheless, insofar as herein
petitioners are concerned, this Court
cannot just sit back and watch as these
two erstwhile government employees,
who after spending the best parts of
their lives in public service have retired
hoping to enjoy their remaining years,
face a financially dismal if not distressed
future, deprived of what should have
been due them by way of additional
retirement benefits, on account of a
bureaucratic boo-boo improvidently
hatched by their higher-ups. It is clear to
our mind that petitioners applied for
benefits under RA 660 only because of
the incentives offered by Res. 56, and
that absent such incentives, they would
have without fall availed of RA 1616
instead. We likewise have no doubt that
petitioners are simply innocent
bystanders in this whole bureaucratic
rule-making/financial scheme-making
drama, and that therefore, to the extent
possible, petitioners ought not be
penalized or made to suffer as a result
of the subsequently determined
invalidity of Res. 56, the promulgation
and implementation of which they had
nothing to do with.
And here is where "equity" may properly
be invoked: since "SSS employees who
are qualified for compulsory retirement
at age 65 or for optional retirement at a
lower age are entitled to either the life
annuity under R.A. 660, as amended, or
the gratuity under R.A. 1616, as
amended",22 it appears that petitioners,
being qualified to avail of benefits under
RA 660, may also readily qualify under
RA 1616. It would therefore not be
misplaced to enjoin the SSS to render
all possible assistance to petitioners for
the prompt processing and approval of
their applications under RA 1616, and in
the meantime, unless barred by existing
regulations, to advance to petitioners
the difference between the amounts due
 under RA 1616, and the amounts they
already obtained, if any, under RA 660.
WHEREFORE, the petition is hereby
DISMISSED for lack of merit, there
having been no grave abuse of
discretion on the part of respondent
Commission. The assailed Decision of
public respondent is AFFIRMED, and
SSS Resolution No. 56 is hereby
declared ILLEGAL, VOID AND OF NO
EFFECT. The SSS is hereby urged to
assist petitioners and facilitate their
applications under RA 1616, and to
advance to them, unless barred by
existing regulations, the corresponding
amounts representing the difference
between the two benefits programs. No
costs.
SO ORDERED.
. G.R. No. 77372 April 29, 1988
LUPO L. LUPANGCO, RAYMOND S.
MANGKAL, NORMAN A. MESINA,
ALEXANDER R. REGUYAL, JOCELYN P.
CATAPANG, ENRICO V. REGALADO,
JEROME O. ARCEGA, ERNESTOC. BLAS,
JR., ELPEDIO M. ALMAZAN, KARL CAESAR
R. RIMANDO, petitioner,  examinations in accountancy schedule on
vs.
COURT OF APPEALS and PROFESSIONAL
REGULATION COMMISSION, respondent.
Balgos & Perez Law Offices for petitioners.
The Solicitor General for respondents.
GANCAYCO, J.:
Is the Regional Trial Court of the same
category as the Professional Regulation
Commission so that it cannot pass upon the
validity of the administrative acts of the latter?
Can this Commission lawfully prohibit the
examiness from attending review classes,
receiving handout materials, tips, or the like
three (3) days before the date of the
examination? Theses are the issues presented
to the court by this petition for certiorari to
review the decision of the Court of Appeals
promulagated on January 13, 1987, in CA-G.R.
SP No. 10598, * declaring null and void the
other dated Ocober 21, 1986 issued by the
Regional Trial Court of Manila, Branch 32 in
Civil Case No. 86-37950 entitled " Lupo L.
Lupangco, et al. vs. Professional Regulation
Commission."
The records shows the following undisputed
facts:
On or about October 6, 1986, herein
respondent Professional Regulation
Commission (PRC) issued Resolution No. 105
as parts of its "Additional Instructions to
Examiness," to all those applying for admission
to take the licensure examinations in
accountancy. The resolution embodied the
following pertinent provisions:
No examinee shall attend any
review class, briefing, conference
or the like conducted by, or shall
receive any hand-out, review
material, or any tip from any
school, college or university, or
any review center or the like or
any reviewer, lecturer, instructor
official or employee of any of the
aforementioned or similars
institutions during the three days
immediately proceeding every
examination day including
examination day.
Any examinee violating this
instruction shall be subject to the
sanctions prescribed by Sec. 8,
Art. III of the Rules and
Regulations of the Commission. 1
On October 16, 1986, herein petitioners, all
reviewees preparing to take the licensure
October 25 and November 2 of the same year,
filed on their own behalf of all others similarly
situated like them, with the Regional Trial Court
of Manila, Branch XXXII, a complaint for
injuction with a prayer with the issuance of a
writ of a preliminary injunction against
respondent PRC to restrain the latter from
enforcing the above-mentioned resolution and
to declare the same unconstitution.
Respondent PRC filed a motion to dismiss on
October 21, 1987 on the ground that the lower
court had no jurisdiction to review and to enjoin
the enforcement of its resolution. In an Order of
October 21, 1987, the lower court declared that
it had jurisdiction to try the case and enjoined
the respondent commission from enforcing and
giving effect to Resolution No. 105 which it
found to be unconstitutional.
Not satisfied therewith, respondent PRC, on
November 10, 1986, filed with the Court of
Appeals a petition for the nullification of the
above Order of the lower court. Said petiton
was granted in the Decision of the Court of
Appeals promulagated on January 13, 1987, to
wit:
WHEREFORE, finding the
petition meritorious the same is
hereby GRANTED and the other
dated October 21, 1986 issued
by respondent court is declared
null and void. The respondent
court is further directed to dismiss
with prejudice Civil Case No. 86-
 37950 for want of jurisdiction over
the subject matter thereof. No
cost in this instance.
SO ORDERED. 2
Hence, this petition.
The Court of Appeals, in deciding that the
Regional Trial Court of Manila had no
jurisdiction to entertain the case and to enjoin
the enforcement of the Resolution No. 105,
stated as its basis its conclusion that the
Professional Regulation Commission and the
Regional Trial Court are co-equal bodies. Thus
it held —
That the petitioner Professional
Regulatory Commission is at
least a co-equal body with the
Regional Trial Court is beyond
question, and co-equal bodies
have no power to control each
other or interfere with each
other's acts. 3
To strenghten its position, the Court of Appeals
relied heavily on National Electrification
Administration vs. Mendoza,  4 which cites
Pineda vs. Lantin  5 and Philippine Pacific
Fishing, Inc. vs. Luna, 6 where this Court held
that a Court of First Instance cannot interfere
with the orders of the Securities and Exchange
Commission, the two being co-equal bodies.
After a close scrutiny of the facts and the
record of this case,
We rule in favor of the petitioner.
The cases cited by respondent court are not in
point. It is glaringly apparent that the reason
why this Court ruled that the Court of First
Instance could not interfere with the orders of
the Securities and Exchange Commission was
that this was so provided for by the law.
In Pineda vs. Lantin, We explained that
whenever a party is aggrieved by or disagree
with an order or ruling of the Securities and
Exchange Commission, he cannot seek relief
from courts of general jurisdiction since under
the Rules of Court and Commonwealth Act No.
83, as amended by Republic Act No. 635,
creating and setting forth the powers and
functions of the old Securities and Exchange
Commission, his remedy is to go the Supreme
Court on a petition for review. Likewise,
in Philippine Pacific Fishing Co., Inc. vs. Luna,it
was stressed that if an order of the Securities
and Exchange Commission is erroneous, the
appropriate remedy take is first, within the
Commission itself, then, to the Supreme Court
as mandated in Presidential Decree No. 902-A,
the law creating the new Securities and
Exchange Commission. Nowhere in the said
cases was it held that a Court of First Instance
has no jurisdiction over all other government
agencies. On the contrary, the ruling was
specifically limited to the Securities and
Exchange Commission.
The respondent court erred when it place the
Securities and Exchange Commission and the
Professional Regulation Commsision in the
same category. As alraedy mentioned, with
respect to the Securities and Exchange
Commission, the laws cited explicitly provide
with the procedure that need be taken when
one is aggrieved by its order or ruling. Upon
the other hand, there is no law providing for the
next course of action for a party who wants to
question a ruling or order of the Professional
Regulation Commission. Unlike
Commonwealth Act No. 83 and Presidential
Decree No. 902-A, there is no provision in
Presidential Decree No. 223, creating the
Professional Regulation Commission, that
orders or resolutions of the Commission are
appealable either to the Court of Appeals or to
theSupreme Court. Consequently, Civil Case
No. 86-37950, which was filed in order to
enjoin the enforcement of a resolution of the
respondent Professional Regulation
Commission alleged to be unconstitutional,
should fall within the general jurisdiction of the
Court of First Instance, now the Regional Trial
Court. 7
What is clear from Presidential Decree No. 223
is that the Professional Regulation Commission
is attached to the Office of the President for
general direction and coordination. 8 Well
settled in our jurisprudence is the view that
even acts of the Office of the President may be
reviewed by the Court of First Instance (now
the Regional Trial Court). In Medalla vs.
Sayo, 9 this rule was thoroughly propounded
on, to wit:
In so far as jurisdiction of the
Court below to review by
certiorari decisions and/or
resolutions of the Civil Service
Commission and of the
residential Executive Asssistant
is concerned, there should be no
question but that the power of
judicial review should be upheld.
The following rulings buttress this
conclusion:
The objection to a
judicial review of a
Presidential act
arises from a failure
to recognize the
most important
principle in our
system of
government, i.e.,
the separation of
powers into three
co-equal
departments, the
 executives, the ... We definitely state that
legislative and the respondent Court lawfully
judicial, each acquired jurisdiction in Civil Case
supreme within its No. II-240 (8) because the
own assigned plaintiff therein asked the lower
powers and duties. court for relief, in the form of
When a presidential injunction, in defense of a legal
act is challenged right (freedom to enter into
before the courts of contracts) . . . . .
justice, it is not to
be implied Hence there is a clear
therefrom that the infringement of private
Executive is being respondent's constitutional right
made subject and to enter into agreements not
subordinate to the contrary to law, which might run
courts. The legality the risk of being violated by the
of his acts are threatened implementation of
under judicial Executive Office Memorandum
review, not because Circular No. 93, dated February
the Executive is 5, 1968, which prohibits, with
inferior to the certain exceptions, cashiers and
courts, but because disbursing officers from honoring
the law is above the special powers of attorney
Chief Executive executed by the payee
himself, and the employees. The respondent
courts seek only to Court is not only right but duty
interpret, apply or bound to take cognizance of
implement it (the cases of this nature wherein a
law). A judicial constitutional and statutory right
review of the is allegedly infringed by the
President's decision administrative action of a
on a case of an government office. Courts of first
employee decided Instance have original jurisdiction
by the Civil Service over all civil actions in which the
Board of Appeals subject of the litigation is not
should be viewed in capable of pecuniary estimation
this light and the (Sec. 44, Republic Act 296, as
bringing of the case amended). 12 (Emphasis
to the Courts should supplied.)
be governed by the
same principles as In San Miguel Corporation vs. Avelino, 13 We
govern the jucucial ruled that a judge of the Court of First Instance
review of all has the authority to decide on the validity of a
administrative acts city tax ordinance even after its validity had
of all administrative been contested before the Secretary of Justice
officers. 10 and an opinion thereon had been rendered.

Republic vs. Presiding Judge, CFI of Lanao del In view of the foregoing, We find no cogent
Norte, Br. II, 11 is another case in point. Here, reason why Resolution No. 105, issued by the
"the Executive Office"' of the Department of respondent Professional Regulation
Education and Culture issued Memorandum Commission, should be exempted from the
Order No. 93 under the authority of then general jurisdiction of the Regional Trial Court.
Secretary of Education Juan Manuel. As in this
case, a complaint for injunction was filed with Respondent PRC, on the other hand, contends
the Court of First Instance of Lanao del Norte that under Section 9, paragraph 3 of B.P. Blg.
because, allegedly, the enforcement of the 129, it is the Court of Appeals which has
circular would impair some contracts already jurisdiction over the case. The said law
entered into by public school teachers. It was provides:
the contention of petitioner therein that "the
Court of First Instance is not empowered to SEC. 9. Jurisdiction. — The
amend, reverse and modify what is otherwise Intermediate Appellate Court
the clear and explicit provision of the shall exercise:
memorandum circular issued by the Executive
Office which has the force and effect of law." In xxx xxx xxx
resolving the issue, We held:
(3) Exclusive appellate
jurisdiction over all final
 judgments, decisions,
resolutions, orders, or awards of
Regional Trial Courts and quasi-
judicial agencies,
instrumentalities, boards or
commissions, except those falling
within the appellate jurisdiction of
the Supreme Court in accordance
with the Constitution, the
provisions of this Act, and of
subparagraph (1) of the third
paragraph and subparagraph (4)
of the fourth paragraph of Section
17 of the Judiciary Act of 1948.
The contention is devoid of merit.
In order to invoke the exclusive appellate
jurisdiction of the Court of Appeals as provided
for in Section 9, paragraph 3 of B.P. Blg. 129,
there has to be a final order or ruling which
resulted from proceedings wherein the
administrative body involved exercised
its quasi-judicial functions. In Black's Law
Dictionary, quasi-judicial is defined as a term
applied to the action, discretion, etc., of public
administrative officers or bodies required to
investigate facts, or ascertain the existence of
facts, hold hearings, and draw conclusions
from them, as a basis for their official action,
and to exercise discretion of a judicial nature.
To expound thereon, quasi-judicial adjudication
would mean a determination of rights,
privileges and duties resulting in a decision or
order which applies to a specific
situation . 14This does not cover rules and
regulations of general applicability issued by
the administrative body to implement its purely
administrative policies and functions like
Resolution No. 105 which was adopted by the
respondent PRC as a measure to preserve the
integrity of licensure examinations.
The above rule was adhered to in Filipinas
Engineering and Machine Shop vs. Ferrer. 15 In
this case, the issue presented was whether or
not the Court of First Instance had jurisdiction
over a case involving an order of the
Commission on Elections awarding a contract
to a private party which originated from an
invitation to bid. The said issue came about
because under the laws then in force, final
awards, judgments, decisions or orders of the
Commission on Elections fall within the
exclusive jurisdiction of the Supreme Court by
way of certiorari. Hence, it has been
consistently held that "it is the Supreme Court,
not the Court of First Instance, which has
exclusive jurisdiction to review on certiorari
final decisions, orders, or rulings of the
Commission on Elections relative to the
conduct of elections and the enforcement of
election laws." 16
As to whether or not the Court of First Instance
had jurisdiction in saidcase, We said:
We are however, far from
convinced that an order of the
COMELEC awarding a contract
to a private party, as a result of
its choice among various
proposals submitted in response
to its invitation to bid comes
within the purview of a "final
order" which is exclusively and
directly appealable to this court
on certiorari. What is
contemplated by the term "final
orders, rulings and decisions, of
the COMELEC reviewable by
certiorari by the Supreme Court
as provided by law are those
rendered in actions or
proceedings before the
COMELEC and taken cognizance
of by the said body in
the exercise of its adjudicatory or
quasi-judicial powers. (Emphasis
supplied.)
xxx xxx xxx
We agree with petitioner's
contention that the order of the
Commission granting the award
to a bidder is not an order
rendered in a legal controversy
before it wherein the parties filed
their respective pleadings and
presented evidence after which
the questioned order was issued;
and that this order of the
commission was issued pursuant
to its authority to enter into
contracts in relation to election
purposes. In short, the
COMELEC resolution awarding
the contract in favor of Acme was
not issued pursuant to its quasi-
judicial functions but merely as
an incident of its inherent
administrative functions over the
conduct of elections, and hence,
the said resolution may not be
deemed as a "final order
reviewable by certiorari by the
Supreme Court. Being non-
judicial in character, no contempt
order may be imposed by the
COMELEC from said order, and
no direct and exclusive appeal by
certiorari to this Tribunal lie from
such order. Any question arising
from said order may be well
taken in an ordinary civil action
before the trial courts. (Emphasis
supplied.) 17
One other case that should be mentioned in
this regard is Salud vs. Central Bank of the
Philippines. 18 Here, petitioner Central Bank,
like respondent in this case, argued that under
Section 9, paragraph 3 of B.P. Blg. 129, orders
of the Monetary Board are appealable only to
the Intermediate Appellate Court. Thus:
The Central Bank and its
Liquidator also postulate, for the
very first time, that the Monetary
Board is among the "quasi-
judicial ... boards" whose
judgments are within the
exclusive appellate jurisdiction of
the IAC; hence, it is only said
Court, "to the exclusion of the
Regional Trial Courts," that may
review the Monetary Board's
resolutions. 19
Anent the posture of the Central Bank, We
made the following pronouncement:
The contention is utterly devoid of
merit. The IAC has no appellate
jurisdiction over resolution or
orders of the Monetary Board. No
law prescribes any mode of
appeal from the Monetary Board
to the IAC. 20
In view of the foregoing, We hold that the
Regional Trial Court has jurisdiction to
entertain Civil Case No. 86-37950 and enjoin
the respondent PRC from enforcing its
resolution.
Although We have finally settled the issue of
jurisdiction, We find it imperative to decide
once and for all the validity of Resolution No.
105 so as to provide the much awaited relief to
those who are and will be affected by it.
Of course, We realize that the questioned
resolution was adopted for a commendable
purpose which is "to preserve the integrity and
purity of the licensure examinations." However,
its good aim cannot be a cloak to conceal its
constitutional infirmities. On its face, it can be
readily seen that it is unreasonable in that an
examinee cannot even attend any review
class, briefing, conference or the like, or
receive any hand-out, review material, or any
tip from any school, collge or university, or any
review center or the like or any reviewer,
lecturer, instructor, official or employee of any
of the aforementioned or similar
institutions . ... 21
The unreasonableness is more obvious in that
one who is caught committing the prohibited
acts even without any ill motives will be barred
from taking future examinations conducted by
the respondent PRC. Furthermore, it is
inconceivable how the Commission can
manage to have a watchful eye on each and
every examinee during the three days before
the examination period.
It is an aixiom in administrative law that
administrative authorities should not act
arbitrarily and capriciously in the issuance of
rules and regulations. To be valid, such rules
and regulations must be reasonable and fairly
adapted to the end in view. If shown to bear no
reasonable relation to the purposes for which
they are authorized to be issued, then they
must be held to be invalid. 22
Resolution No. 105 is not only unreasonable
and arbitrary, it also infringes on the
examinees' right to liberty guaranteed by the
Constitution. Respondent PRC has no
authority to dictate on the reviewees as to how
they should prepare themselves for the
licensure examinations. They cannot be
restrained from taking all the lawful steps
needed to assure the fulfillment of their
ambition to become public accountants. They
have every right to make use of their faculties
in attaining success in their endeavors. They
should be allowed to enjoy their freedom to
acquire useful knowledge that will promote
their personal growth. As defined in a decision
of the United States Supreme Court:
The term "liberty" means more
than mere freedom from physical
restraint or the bounds of a
prison. It means freedom to go
where one may choose and to
act in such a manner not
inconsistent with the equal rights
of others, as his judgment may
dictate for the promotion of his
happiness, to pursue such
callings and vocations as may be
most suitable to develop his
capacities, and giv to them their
highest enjoyment. 23
Another evident objection to Resolution No.
105 is that it violates the academic freedom of
the schools concerned. Respondent PRC
cannot interfere with the conduct of review that
review schools and centers believe would best
enable their enrolees to meet the standards
required before becoming a full fledged public
accountant. Unless the means or methods of
instruction are clearly found to be inefficient,
impractical, or riddled with corruption, review
schools and centers may not be stopped from
helping out their students. At this juncture, We
call attention to Our pronouncement
in Garcia vs. The Faculty Admission
Committee, Loyola School of
Theology, 24 regarding academic freedom to
wit:
... It would follow then that the
school or college itself is
possessed of such a right. It
decides for itself its aims and
objectives and how best to attain
them. It is free from outside
coercion or interference save
possibly when the overriding
public welfare calls for some
 restraint. It has a wide sphere of
autonomy certainly extending to
the choice of students. This
constitutional provision is not to
be construed in a niggardly
manner or in a grudging fashion.

Needless to say, the enforcement of

Resolution No. 105 is not a guarantee that the
alleged leakages in the licensure examinations
will be eradicated or at least minimized. Making
the examinees suffer by depriving them of
legitimate means of review or preparation on
those last three precious days-when they
should be refreshing themselves with all that
they have learned in the review classes and
preparing their mental and psychological
make-up for the examination day itself-would
be like uprooting the tree to get ride of a rotten
branch. What is needed to be done by the
respondent is to find out the source of such
leakages and stop it right there. If corrupt
officials or personnel should be terminated
from their loss, then so be it. Fixers or
swindlers should be flushed out. Strict
guidelines to be observed by examiners should
be set up and if violations are committed, then
licenses should be suspended or revoked.
These are all within the powers of the
respondent commission as provided for in
Presidential Decree No. 223. But by all means
the right and freedom of the examinees to avail
of all legitimate means to prepare for the
examinations should not be curtailed.

In the light of the above, We hereby REVERSE

and SET ASIDE, the decision of the Court of
Appeals in CA-G.R. SP No. 10591 and another
judgment is hereby rendered declaring
Resolution No. 105 null and void and of no
force and effect for being unconstitutional. This
decision is immediately executory. No costs.

SO ORDERED.