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 parte Bates, supra.) In Williams vs. State
([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia probation
statute against the contention that it attempted to delegate to the courts the pardoning power lodged
by the constitution in the governor 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],
14 F. [2d], 5, 7.)