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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-45685

November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORA
TION, petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO
CU UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the Governme
nt.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corp
oration.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McD
onough 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 applic
ation of the defendant Mariano Cu Unjieng therein for probation under the provis
ions of Act No. 4221, and thereafter prohibit the said Court of First Instance f
rom taking any further action or entertaining further the aforementioned applica
tion for probation, to the end that the defendant Mariano Cu Unjieng may be fort
hwith committed to prison in accordance with the final judgment of conviction re
ndered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shangh
ai Banking Corporation, are respectively the plaintiff and the offended party, a
nd the respondent herein Mariano Cu Unjieng is one of the defendants, in the cri
minal 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 a
foresaid criminal case.
The information in the aforesaid criminal case was filed with the Court of F
irst Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shan
ghai Banking Corporation intervening in the case as private prosecutor. After a
protracted trial unparalleled in the annals of Philippine jurisprudence both in
the length of time spent by the court as well as in the volume in the testimony
and the bulk of the exhibits presented, the Court of First Instance of Manila, o

n January 8, 1934, rendered a judgment of conviction sentencing the defendant Ma

riano 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 w
ith reservation of civil action to the offended party, the Hongkong and Shanghai
Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the se
ntence 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 moti
on for reconsideration and four successive motions for new trial which were deni
ed 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 fo
r certiorari in
November, 1936. This court, on
November
24, 1936, denied the petition subsequently filed by the defendant for leave to f
ile 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, be
fore the trial court, under the provisions of Act No. 4221 of the defunct Philip
pine Legislature. Herein respondent Mariano Cu Unjieng states in his petition, i
nter alia, that he is innocent of the crime of which he was convicted, that he h
as 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 ap
plication for probation of the Insular Probation Office which recommended denial
of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, s
eventh branch, Judge Jose O. Vera presiding, set the petition for hearing on Apr
il 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to th
e granting of probation to the herein respondent Mariano Cu Unjieng. The private
prosecution also filed an opposition on April 5, 1937, alleging, among other th
ings, 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, subsecti
on (1), Article III of the Constitution guaranteeing equal protection of the law
s for the reason that its applicability is not uniform throughout the Islands an
d 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 the
ir respective provinces. The private prosecution also filed a supplementary oppo
sition on April 19, 1937, elaborating on the alleged unconstitutionality on Act
No. 4221, as an undue delegation of legislative power to the provincial boards o
f several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred i
n 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 resolut
ion with a finding that "las pruebas no han establecido de unamanera concluyente
la culpabilidad del peticionario y que todos los hechos probados no son inconsi
stentes o incongrentes con su inocencia" and concludes that the herein responden
t Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he st
ands convicted by this court in G.R. No. 41200, but denying the latter's petitio
n for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstanc
ias y la historia social que se han expuesto en el cuerpo de esta resolucion, qu
e hacen al peticionario acreedor de la misma, una parte de la opinion publica, a
tizada 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 recaid
as al traer a la superficie conclusiones enteramente differentes, en menoscabo d

el 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 fi
le a motion for reconsideration. An alternative motion for reconsideration or ne
w trial was filed by counsel on July 13, 1937. This was supplemented by an addit
ional motion for reconsideration submitted on July 14, 1937. The aforesaid motio
ns 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 l
eave to intervene in the case as amici curiae signed by thirty-three (thirty-fou
r) attorneys had just been filed with the trial court. Attorney Eulalio Chaves w
hose 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 cou
nsel 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 co
urt in said case and forthwith to commit the herein respondent Mariano Cu Unjien
g to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motio
n for leave to intervene as amici curiae aforementioned, asking that a date be s
et for a hearing of the same and that, at all events, said motion should be deni
ed with respect to certain attorneys signing the same who were members of the le
gal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, her
ein respondent Judge Jose O. Vera issued an order requiring all parties includin
g the movants for intervention as amici curiae to appear before the court on Aug
ust 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 mo
tion for leave to intervene as amici curiae but, upon objection of counsel for M
ariano 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 A
ugust 21, 1937, but proceeded to consider the motion for leave to intervene as a
mici curiae as in order. Evidence as to the circumstances under which said motio
n for leave to intervene as amici curiae was signed and submitted to court was t
o have been heard on August 19, 1937. But at this juncture, herein petitioners c
ame to this court on extraordinary legal process to put an end to what they alle
ged was an interminable proceeding in the Court of First Instance of Manila whic
h fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the ex
ecution of the sentence imposed by this Honorable Court on him, exposing the cou
rts 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 defend
ant 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 cer
tiorari 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 Mar
iano Cu Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legisla
ture is made to apply only to the provinces of the Philippines; it nowhere state
s 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 th

e 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 gener
al 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 o
fficer.
(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 salar
y 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 differ
ent and distinct from the Probation Officer provided for in section 11 of the sa
me 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 e
ntertain the motion for reconsideration and by failing to commit Mariano Cu Unji
eng 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 Ac
t 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 i
ts rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said or
der 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 c
ourt, 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 resp
ondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate h
is duty, which became imperative when he issued his order of June 28, 1937, deny
ing the application for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequat
e remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner H
ongkong and Shanghai Banking Corporation further contends that Act No. 4221 of t
he Philippine Legislature providing for a system of probation for persons eighte
en 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 o
f the Philippines guaranteeing equal protection of the laws because it confers u
pon the provincial board of its province the absolute discretion to make said la
w operative or otherwise in their respective provinces, because it constitutes a
n unlawful and improper delegation to the provincial boards of the several provi
nces of the legislative power lodged by the Jones Law (section 8) in the Philipp
ine Legislature and by the Constitution (section 1, Art. VI) in the National Ass

embly; and for the further reason that it gives the provincial boards, in contra
vention 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 differe
nt provinces without uniformity. In another supplementary petition dated Septemb
er 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitione
rs, the People of the Philippine Islands, concurs for the first time with the is
sues 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 the
ory that probation is a form of reprieve and therefore Act. No. 4221 is an encro
achment on the exclusive power of the Chief Executive to grant pardons and repri
eves. On October 7, 1937, the City Fiscal filed two memorandums in which he cont
ended that Act No. 4221 not only encroaches upon the pardoning power to the exec
utive, 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 o
f the People of the Philippine Islands, and by counsel for the petitioner, the H
ongkong 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. 422
1 constitutes an unwarranted delegation of legislative power, were presented. An
other 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 equa
l protection of the laws and constitutes an unlawful delegation of legislative p
ower and, further, that the whole Act is void: that the Commonwealth is not esto
pped from questioning the validity of its laws; that the private prosecution may
intervene in probation proceedings and may attack the probation law as unconsti
tutional; and that this court may pass upon the constitutional question in prohi
bition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their o
ral argument and memorandums, challenge each and every one of the foregoing prop
osition 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 b
y the petitioners is the very same remedy prayed for by them before the trial co
urt and was still pending resolution before the trial court when the present pet
ition 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 exc
lusive jurisdiction to resolve the same under the theory that its resolution den
ying 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 th
e execution will lie, this court nevertheless cannot exercise said jurisdiction
while the Court of First Instance has assumed jurisdiction over the same upon mo
tion of herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seekin
g to deprive the trial court of its jurisdiction over the case and elevate the p
roceedings to this court, should not be tolerated because it impairs the authori
ty and dignity of the trial court which court while sitting in the probation cas
es is "a court of limited jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to resol

ve the question submitted to and pending resolution by the trial court, the pres
ent action would not lie because the resolution of the trial court denying proba
tion 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 Fi
rst 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 r
espondent Mariano Cu Unjieng being appealable, the same had not become final and
executory for the reason that the said respondent had filed an alternative moti
on 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 or
der improvidently and erroneously issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted th
at the resolution of the trial court denying probation is not final and unappeal
able when he presented his answer to the motion for reconsideration and agreed t
o 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, n
evertheless denied probation for fear of criticism because the accused is a rich
man; and that, before a petition for certiorari grounded on an irregular exerci
se of jurisdiction by the trial court could lie, it is incumbent upon the petiti
oner 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 appeala
ble, the trial court retains its jurisdiction within a reasonable time to correc
t or modify it in accordance with law and justice; that this power to alter or m
odify an order or resolution is inherent in the courts and may be exercise eithe
r 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 ap
pealable as respondent allege, said court cannot order execution of the same whi
le 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 s
entence (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 allegation
s of the petitioners, it does not constitute an undue delegation of legislative
power, does not infringe the equal protection clause of the Constitution, and do
es not encroach upon the pardoning power of the Executive. In an additional memo
randum filed on the same date, counsel for the respondents reiterate the view th
at section 11 of Act No. 4221 is free from constitutional objections and contend
, in addition, that the private prosecution may not intervene in probation proce
edings, much less question the validity of Act No. 4221; that both the City Fisc
al and the Solicitor-General are estopped from questioning the validity of the A
ct; that the validity of Act cannot be attacked for the first time before this c
ourt; that probation in unavailable; and that, in any event, section 11 of the A
ct No. 4221 is separable from the rest of the Act. The last memorandum for the r
espondent Mariano Cu Unjieng was denied for having been filed out of time but wa
s admitted by resolution of this court and filed anew on
November 5,
1937. This memorandum elaborates on some of the points raised by the respondent
s and refutes those brought up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspects of t

he present case, we noted that the court below, in passing upon the merits of th
e application of the respondent Mariano Cu Unjieng and in denying said applicati
on assumed the task not only of considering the merits of the application, but o
f passing upon the culpability of the applicant, notwithstanding the final prono
uncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be fi
nal judgment. While a probation case may look into the circumstances attending t
he commission of the offense, this does not authorize it to reverse the findings
and conclusive of this court, either directly or indirectly, especially wherefr
om its own admission reliance was merely had on the printed briefs, averments, a
nd pleadings of the parties. As already observed by this court in Shioji vs. Har
vey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each a
nd every Court of First Instance could enjoy the privilege of overruling decisio
ns of the Supreme Court, there would be no end to litigation, and judicial chaos
would result." A becoming modesty of inferior courts demands conscious realizat
ion of the position that they occupy in the interrelation and operation of the i
ntergrated 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) whethe
r 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 constitutio
nal. Considerations of these issues will involve a discussion of certain inciden
tal questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain g
uiding principles is necessary. It is a well-settled rule that the constitutiona
lity of an act of the legislature will not be determined by the courts unless th
at question is properly raised and presented inappropriate cases and is necessar
y to a determination of the case; i.e., the issue of constitutionality must be t
he 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 freque
ntly raised in ordinary actions. Nevertheless, resort may be made to extraordina
ry 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 cons
titutionality of a statute may be raised by the petitioner in mandamus proceedin
gs (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 Ph
ilippine 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 th
e 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 a
ction under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56
Phil., 234); and even on an application for preliminary injunction where the de
termination of the constitutional question is necessary to a decision of the cas
e. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorar
i.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 La
w. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pa
c., 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 twelv
e years ago was, like the present one, an original action for certiorari and pro
hibition. 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 origi
nal proceedings in prohibition." This court decided to take up the constitutiona
l question and, with two justices dissenting, held that Act No. 2972 was constit
utional. 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 w
as 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 P
hilippine supreme court is granted concurrent jurisdiction in prohibition with c
ourts of first instance over inferior tribunals or persons, and original jurisdi
ction over courts of first instance, when such courts are exercising functions w
ithout or in excess of their jurisdiction. It has been held by that court that t
he 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 C
ourt. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in thi
s case where a new act seriously affected numerous persons and extensive propert
y rights, and was likely to cause a multiplicity of actions, the Supreme Court e
xercised 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 cou
rt 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 v
s. 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 o
bjection 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 t
he Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a c
ourt 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 prohibiti
on will not lie whether the inferior court has jurisdiction independent of the s
tatute the constitutionality of which is questioned, because in such cases the i
nterior court having jurisdiction may itself determine the constitutionality of
the statute, and its decision may be subject to review, and consequently the com
plainant in such cases ordinarily has adequate remedy by appeal without resort t
o the writ of prohibition. But where the inferior court or tribunal derives its
jurisdiction exclusively from an unconstitutional statute, it may be prevented b
y 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 K
y., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shiel
ds [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their juri
sdiction solely from Act No. 4221 which prescribes in detailed manner the proced
ure 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 Ma
ssachusetts, Michigan, New York, and Ohio, the power is inherent in the courts (
Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [190
9], 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 l
eading 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 p
ower of the court was limited to temporary suspension, and brushed aside the con
tention as to inherent judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses again
st the criminal laws and upon conviction to impose the punishment provided by la
w is judicial, and it is equally to be conceded that, in exerting the powers ves
ted in them on such subject, courts inherently possess ample right to exercise r
easonable, that is, judicial, discretion to enable them to wisely exert their au
thority. But these concessions afford no ground for the contention as to power h
ere made, since it must rest upon the proposition that the power to enforce bege
ts 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 autho
rity 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 executi
ng the statute, elements of consideration which would be otherwise beyond the sc
ope of judicial authority, and that the right to relieve from the punishment, fi
xed by law and ascertained according to the methods by it provided belongs to th
e executive department.
Justice Carson, in his illuminating concurring opinion in the case of Direct
or 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 ex
ecution of sentences pronounced in criminal cases is not inherent in the judicia
l function. "All are agreed", he said, "that in the absence of statutory authori
ty, it does not lie within the power of the courts to grant such suspensions." (
at p. 278.) Both petitioner and respondents are correct, therefore, when they ar
gue that a Court of First Instance sitting in probation proceedings is a court o
f limited jurisdiction. Its jurisdiction in such proceedings is conferred exclus
ively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be c
onsidered on application for prohibition where the question has not been properl
y brought to the attention of the court by objection of some kind (Hill vs. Tarv
er [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 con
stitutional issue has been squarely presented not only before this court by the
petitioners but also before the trial court by the private prosecution. The resp
ondent, 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. Th
e respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 1
2 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Ma
ss., 59; 113 N. E., 742, 743), as authority for the proposition that a court wil
l 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 opera
tion. The respondent judge further stated that it may not motu proprio take up t
he constitutional question and, agreeing with Cooley that "the power to declare
a legislative enactment void is one which the judge, conscious of the fallibilit
y of the human judgment, will shrink from exercising in any case where he can co
nscientiously and with due regard to duty and official oath decline the responsi
bility" (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 con
sider the question solely because it was not raised by a proper party. Responden
ts herein reiterates this view. The argument is advanced that the private prosec
ution has no personality to appear in the hearing of the application for probati
on of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of Fi

rst Instance of Manila, and hence the issue of constitutionality was not properl
y raised in the lower court. Although, as a general rule, only those who are par
ties to a suit may question the constitutionality of a statute involved in a jud
icial decision, it has been held that since the decree pronounced by a court wit
hout jurisdiction is void, where the jurisdiction of the court depends on the va
lidity of the statute in question, the issue of the constitutionality will be co
nsidered on its being brought to the attention of the court by persons intereste
d 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 genera
l rule, the question of constitutionality must be raised at the earliest opportu
nity, 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 appe
al. (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 exce
ptions. Courts, in the exercise of sounds discretion, may determine the time whe
n 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 the
re 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 c
ourt or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held tha
t it is the duty of a court to pass on the constitutional question, though raise
d for the first time on appeal, if it appears that a determination of the questi
on 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 ques
tion 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 rais
ed 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 h
ypotheses that the Hongkong & Shanghai Banking Corporation, represented by the p
rivate prosecution, is not the proper party to raise the constitutional question
a point we do not now have to decide we are of the opinion that the People
here
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 unchallen
ged rule is that the person who impugns the validity of a statute must have a pe
rsonal 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 Philipp
ines, 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 exp
enditure 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 Philippin
e Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Governm
ent of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this cou
rt declared an act of the legislature unconstitutional in an action instituted i
n 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 r
ight of the respondents to renew a mining corporation, alleging that the statute
under which the respondents base their right was unconstitutional because it im
paired 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 o
f a statute involved in a judicial decision, it has been held that since the dec
ree pronounced by a court without jurisdiction in void, where the jurisdiction o

f the court depends on the validity of the statute in question, the issue of con
stitutionality will be considered on its being brought to the attention of the c
ourt by persons interested in the effect to begin the statute. (12 C.J., sec. 18
4, p. 766.) And, even if we were to concede that the issue was not properly rais
ed 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 t
rue 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 no
t be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumbe
r Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the gener
al rule admits of exceptions. Courts, in the exercise of sound discretion, may d
etermine the time when a question affecting the constitutionality of a statute s
hould be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in crimina
l 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 qu
estion, though raised for first time on appeal, if it appears that a determinati
on of the question is necessary to a decision of the case. (McCabe's Adm'x vs. M
aysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. L
ouis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Tr
ansit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a cons
titutional 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 constitutiona
l 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, sup
ra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, repr
esented by the private prosecution, is not the proper party to raise the constit
a point we do not now have to decide we are of the opinion
utional question here
that the People of the Philippines, represented by the Solicitor-General and th
e Fiscal of the City of Manila, is such a proper party in the present proceeding
s. The unchallenged rule is that the person who impugns the validity of a statut
e must have a personal and substantial interest in the case such that he has sus
tained, or will sustain, direct injury as a result of its enforcement. It goes w
ithout 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 substanti
al 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 f
undamental 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 o
f the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Sprin
ger 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 acti
on instituted in behalf of the Government of the Philippines. In Attorney Genera
l vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the Sta
te of Michigan, through its Attorney General, instituted quo warranto proceeding
s to test the right of the respondents to renew a mining corporation, alleging t
hat the statute under which the respondents base their right was unconstitutiona
l 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 itsel
f 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 th
e people of Michigan of usurpation their government, a statute enacted by the pe
ople of Michigan is an adequate answer. The last proposition is true, but, if th
e 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 act

ion 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 speakin
g of an acquiescence by a party affected by an unconstitutional act of the legis
lature: "The people have a deep and vested interest in maintaining all the const
itutional limitations upon the exercise of legislative powers." (Allen vs. Mckee
n, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original act
ion (mandamus) was brought by the Attorney-General of Kansas to test the constit
utionality of a statute of the state. In disposing of the question whether or no
t 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 act
ion. The state is always interested where the integrity of its Constitution or s
tatutes is involved.
"It has an interest in seeing that the will of the Legislature is not disreg
arded, and need not, as an individual plaintiff must, show grounds of fearing mo
re 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 w
arranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 106
8; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Doll
ey, 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., 3
19; 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 la
st cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, bei
ng 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 (3
3 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of Ne
w Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. H
eard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decision
s 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 vio
lation of the statute. In other words, a judge should not judicially declare a s
tatute unconstitutional until the question of constitutionality is tendered for
decision, and unless it must be decided in order to determine the right of a par
ty litigant. State ex rel. Nicholls, Governor, etc., is authority for the propos
ition 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 responsib
ility if the statute be unconstitutional. State ex rel. Banking Co., etc., is au

thority for the proposition merely that executive officers, e.g., the state audi
tor and state treasurer, should not decline to perform ministerial duties impose
d upon them by a statute, on the ground that they believe the statute is unconst
itutional.
It is the duty of a district attorney to enforce the criminal laws of the st
ate, and, above all, to support the Constitution of the state. If, in the perfor
mance of his duty he finds two statutes in conflict with each other, or one whic
h repeals another, and if, in his judgment, one of the two statutes is unconstit
utional, it is his duty to enforce the other; and, in order to do so, he is comp
elled to submit to the court, by way of a plea, that one of the statutes is unco
nstitutional. 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 genera
l 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 app
ear to have proceeded on the assumption that the rule as stated is sound but tha
t it has no application in the present case, nor may it be invoked by the City F
iscal 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 ch
allenge the validity of the Act in its application outside said city. (Additiona
l 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 pas
t and all that time has not been attacked as unconstitutional by the Fiscal of M
anila 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 a
ssailing its validity. For courts will pass upon a constitutional questions only
when presented before it in bona fide cases for determination, and the fact tha
t 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, ". . . wh
ile the court will meet the question with firmness, where its decision is indisp
ensable, 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 dete
rmination 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. Kenne
dy [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 Po
rto 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 tha
t 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 cognizanc
e 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 a
ccused 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 ad

vantage of the Probation Act in the future; and that the respondent Mariano Cu U
njieng has been at large for a period of about four years since his first convic
tion. All wait the decision of this court on the constitutional question. Consid
ering, therefore, the importance which the instant case has assumed and to preve
nt multiplicity of suits, strong reasons of public policy demand that the consti
tutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 4
7 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 Co
ng Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inas
much 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 ye
t interpreted by the courts, in the interest of the public welfare and for the a
dvancement 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 extr
aordinary situation which calls for a relaxation of the general rule." Our rulin
g 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 unc
onstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judic
iary to enforce the Constitution. This court, by clear implication from the prov
isions of section 2, subsection 1, and section 10, of Article VIII of the Consti
tution, may declare an act of the national legislature invalid because in confli
ct with the fundamental lay. It will not shirk from its sworn duty to enforce th
e 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 ess
ence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nat
ure that all reasonable doubts should be resolved in favor of the constitutional
ity of a statute. An act of the legislature approved by the executive, is presum
ed 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 Exe
cutive have taken an oath to support the Constitution and it must be presumed th
at they have been true to this oath and that in enacting and sanctioning a parti
cular 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 wisdo
m of the people as expressed through an elective Legislature and an elective Chi
ef 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 argumen
t, called attention to the fact that the President of the Philippines had alread
y expressed his opinion against the constitutionality of the Probation Act, adve
rting that as to the Executive the resolution of this question was a foregone co
nclusion. Counsel, however, reiterated his confidence in the integrity and indep
endence of this court. We take notice of the fact that the President in his mess

age dated September 1, 1937, recommended to the National Assembly the immediate
repeal of the Probation Act (No. 4221); that this message resulted in the approv
al of Bill No. 2417 of the Nationality Assembly repealing the probation Act, sub
ject to certain conditions therein mentioned; but that said bill was vetoed by t
he 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 u
nconstitutional." It is sufficient to observe in this connection that, in vetoin
g 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 co
nstitutional power of veto but which happens to be at the same time pending dete
rmination in this court is a question of propriety for him exclusively to decide
or determine. Whatever opinion is expressed by him under these circumstances, h
owever, cannot sway our judgment on way or another and prevent us from taking wh
at 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 p
eriod of our political history, it is that we are independent of the Executive n
o less than of the Legislative department of our government
independent in the p
erformance 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 groun
ds: (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 de
nies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as t
he Jones Law, in force at the time of the approval of Act No. 4221, otherwise kn
own 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. 1
1, subsec. 6.) The provisions of the Jones Law and the Constitution differ in so
me respects. The adjective "exclusive" found in the Jones Law has been omitted f
rom the Constitution. Under the Jones Law, as at common law, pardon could be gra
nted any time after the commission of the offense, either before or after convic
tion (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [192
2], 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 th
is undesirable and, following most of the state constitutions, provided that the
pardoning power can only be exercised "after conviction". So, too, under the ne
w Constitution, the pardoning power does not extend to "cases of impeachment". T
his 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 Blackst
one, "after the impeachment has been solemnly heard and determined, it is not un
derstood 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, Judgme
nt on impeachment is not confined to mere "removal from office and disqualificat
ion 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 pu
nishment attached by law to the offense committed. The House of Lords, on a conv
iction may, by its sentence, inflict capital punishment, perpetual banishment, p
erpetual banishment, fine or imprisonment, depending upon the gravity of the off
ense committed, together with removal from office and incapacity to hold office.

(Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of "co
mmutation" and of the power of the executive to impose, in the pardons he may gr
ant, such conditions, restrictions and limitations as he may deem proper. Amnest
y may be granted by the President under the Constitution but only with the concu
rrence 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 t
he pardoning power has remained essentially the same. The question is: Has the p
ardoning power of the Chief Executive under the Jones Law been impaired by the P
robation Act?
As already stated, the Jones Law vests the pardoning power exclusively in th
e Chief Executive. The exercise of the power may not, therefore, be vested in an
yone else.
". . . The benign prerogative of mercy reposed in the executive cannot be ta
ken away nor fettered by any legislative restrictions, nor can like power be giv
en by the legislature to any other officer or authority. The coordinate departme
nts of government have nothing to do with the pardoning power, since no person p
roperly belonging to one of the departments can exercise any powers appertaining
to either of the others except in cases expressly provided for by the constitut
ion." (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 delega
te 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 s
entenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 12
9; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justic
e 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 tempo
rary suspension and that the right to suspend sentenced absolutely and permanent
ly 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. Sai
d the court through its Chief Justice: ". . . and so far as the future is concer
ned, 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 b
e presented to them for judgment, recourse must be had Congress whose legislativ
e power on the subject is in the very nature of things adequately complete." (Qu
oted 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 Congr
ess 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 probati
on officers chosen by civil service. (Johnson, Probation for Juveniles and Adult
s, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 7
2 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 th
e 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 Sessio

n) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the distri
ct courts exercised a form of probation either, by suspending sentence or by pla
cing 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, 11
78; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the rig
ht of the district courts to suspend sentenced. In the same opinion the court po
inted out the necessity for action by Congress if the courts were to exercise pr
obation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact proba
tion legislation. In 1917, a bill was favorably reported by the Judiciary Commit
tee and passed the House. In 1920, the judiciary Committee again favorably repor
ted 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 go
vernment 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 t
ime every state has a probation law, and in all but twelve states the law applie
s both to adult and juvenile offenders. (see, also, Johnson, Probation for Juven
iles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inf
erior federal courts. In Riggs vs. United States supra, the Circuit Court of App
eals 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 C
ircuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, a
nd the same held in no manner to encroach upon the pardoning power of the Presid
ent. 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 t
he 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 Sev
enth Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probat
ion Act.
We have seen that in 1916 the Supreme Court of the United States; in plain a
nd unequivocal language, pointed to Congress as possessing the requisite power t
o 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 Cour
t of the United States in 1928 and consistently sustained by the inferior federa
l 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 f
ix 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 Legis
lature 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 exer
cise of this power the general assembly may confer on trial judges, if it sees f
it, 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.) I
ndeed, 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 t
he penalties which the law prescribes in particular cases. It is believed that j
ustice can best be served by vesting this power in the courts, they being in a p
osition 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 mal
ice 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 Executi
ve, 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 cir
cumstances 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 circum
stances to offset one another in consideration of their number and importance, a
nd 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 li
mits established by law, considering not only the mitigating and aggravating cir
cumstances, 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 nin
e years of age, who has not acted without discernment, but always lower by two d
egrees 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 o
f 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 vi
ew 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 of
fender," shall impose upon him either arresto mayor or a fine ranging from 200 t
o 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imp
risonment is deducted form the entire term of imprisonment, except in certain ca
ses expressly mentioned (art. 29); the death penalty is not imposed when the gui
lty person is more than seventy years of age, or where upon appeal or revision o
f the case by the Supreme Court, all the members thereof are not unanimous in th
eir 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 s
erving his sentenced, the execution of said sentence shall be suspended with reg
ard to the personal penalty during the period of such insanity or imbecility (ar
t. 79).
But the desire of the legislature to relax what might result in the undue ha
rshness of the penal laws is more clearly demonstrated in various other enactmen
ts, 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 i
mposing the penalties of the law. Section 1 of the law as amended provides; "her
eafter, in imposing a prison sentence for an offenses punished by the Revised Pe
nal Code, or its amendments, the court shall sentence the accused to an indeterm
inate sentence the maximum term of which shall be that which, in view of the att

ending 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 a
ny 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 th
e minimum shall not be less than the minimum term prescribed by the same." Certa
in 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 P
enal Code, amended by Act No. 4117 of the Philippine Legislature and recently re
amended by Commonwealth Act No. 99 of the National Assembly. In this Act is agai
n manifested the intention of the legislature to "humanize" the penal laws. It a
llows, in effect, the modification in particular cases of the penalties prescrib
ed by law by permitting the suspension of the execution of the judgment in the d
iscretion of the trial court, after due hearing and after investigation of the p
articular circumstances of the offenses, the criminal record, if any, of the con
vict, and his social history. The Legislature has in reality decreed that in cer
tain 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 Exe
cutive to grant pardons and reprieves, because, to use the language of the Supre
me Court of New Mexico, "the element of punishment or the penalty for the commis
sion 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 prob
ation 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, th
e power of the courts to imposed any penalty which may be from time to time pres
cribed 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 su
spend 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., 70
2; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex p
arte 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 [19
12], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex part
e 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., 6
20; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 12
2 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 Ca
l., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; B
elden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1
926], 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. St

ickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Mi
nn., 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. Fors
yth 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., 63
9; 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 Te
x. 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 v
s. 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 a
uthorities holding that the courts may be legally authorized by the legislature
to suspend sentence by the establishment of a system of probation however charac
terized. 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 ena
cted in 1921 which provided for the suspension of the execution of a sentence un
til otherwise ordered by the court, and required that the convicted person be pl
aced under the charge of a parole or peace officer during the term of such suspe
nsion, 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 vestin
g the pardoning power in the chief executive of the state. (Vide, also, Re Giann
ini [1912], 18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are ac
tually 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 o
f New York said:
. . . The power to suspend sentence and the power to grant reprieves and par
dons, 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; t
he latter was always a part of the executive power. The suspension of the senten
ce simply postpones the judgment of the court temporarily or indefinitely, but t
he conviction and liability following it, and the civil disabilities, remain and
become operative when judgment is rendered. A pardon reaches both the punishmen
t prescribed for the offense and the guilt of the offender. It releases the puni
shment, 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 th
e 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 famili
ar with the principles governing the power to grant pardons, and it was conferre
d by these instruments upon the executive with full knowledge of the law upon th

e 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 coloni
es. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power wa
s understood, it did not comprehend any part of the judicial functions to suspen
d 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 i
n 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 ot
her by the judicial department. We therefore conclude that a statute which, in t
erms, 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 functio
n, and which, ever since its adoption, has been exercised of legislative power u
nder 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 t
imes. (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 p
unishment which the law inflicts. Under the Probation Act, the probationer's cas
e is not terminated by the mere fact that he is placed on probation. Section 4 o
f the Act provides that the probation may be definitely terminated and the proba
tioner finally discharged from supervision only after the period of probation sh
all 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 cond
itions of probation. The probationer, then, during the period of probation, rema
ins 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 p
robation 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 b
y the judge in a proper case, in substitution of the imprisonment and find presc
ribed by the criminal laws. For this reason its application is as purely a judic
ial act as any other sentence carrying out the law deemed applicable to the offe
nse. 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 unconstitutionalit
y 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 probati
on law authorizing the indefinite judicial suspension of sentence. We have exami
ned that case and found that although the Court of Criminal Appeals of Texas hel
d that the probation statute of the state in terms conferred on the district cou
rts the power to grant pardons to persons convicted of crime, it also distinguis
hed between suspensions sentence on the one hand, and reprieve and commutation o
f sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of t
he 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 se

ntence is that a reprieve postpones the execution of the sentence to a day certa
in, 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 i
n 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict with th
e power confiding in the Governor to grant commutations of punishment, for a com
mutations 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 Pa
c., 525), the Supreme Court of Montana had under consideration the validity of t
he 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 upo
n the pardoning power of the executive. In a unanimous decision penned by Justic
e Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well unde
rstood 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 p
hrase is employed in sections 12078-12086. A "pardon" is an act of grace, procee
ding from the power intrusted with the execution of the laws which exempts the i
ndividual on whom it is bestowed from the punishment the law inflicts for a crim
e 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 forgiven
ess of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powel
l, 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 (Le
e vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mi
ch., 381; 65 N. W., 235). A "reprieve" or "respite" is the withholding of the se
ntence for an interval of time (4 Blackstone's Commentaries, 394), a postponemen
t of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary s
uspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute sim
ilar 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 t
han those to whom the power of pardon is granted, and these statutes have been u
pheld quite uniformly, as a reference to the numerous cases cited in the notes t
o Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 5
31), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning powe
r of the Executive. The pardoning power, in respect to those serving their proba
tionary sentences, remains as full and complete as if the Probation Law had neve
r been enacted. The President may yet pardon the probationer and thus place it b
eyond the power of the court to order his rearrest and imprisonment. (Riggs vs.
United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power of
the executive and is not for that reason void, does section 11 thereof constitu
te, as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed am
ong 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 jurisdict
ion, and is supreme within its own sphere.
The power to make laws
the legislative power
is vested in a bicameral Legisl
ature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Co

nstitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Le

gislature or the National Assembly may not escape its duties and responsibilitie
s by delegating that power to any other body or authority. Any attempt to abdica
te the power is unconstitutional and void, on the principle that potestas delega
ta non delegare potest. This principle is said to have originated with the gloss
ators, was introduced into English law through a misreading of Bracton, there de
veloped as a principle of agency, was established by Lord Coke in the English pu
blic 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 b
ecome 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 Loc
ke, namely: "The legislative neither must nor can transfer the power of making l
aws 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 followi
ng oft-quoted language: "One of the settled maxims in constitutional law is, tha
t the power conferred upon the legislature to make laws cannot be delegated by t
hat 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. Th
e power to whose judgment, wisdom, and patriotism this high prerogative has been
intrusted cannot relieve itself of the responsibilities by choosing other agenc
ies 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 hav
e seen fit to confide this sovereign trust." (Cooley on Constitutional Limitatio
ns, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 1
1 Phil., 327.) This court posits the doctrine "on the ethical principle that suc
h a delegated power constitutes not only a right but a duty to be performed by t
he delegate by the instrumentality of his own judgment acting immediately upon t
he 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 im
memorial practice permits the central legislative body to delegate legislative p
owers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phi
l., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [18
89], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [18
55], 30 N. H., 279.) "It is a cardinal principle of our system of government, th
at local affairs shall be managed by local authorities, and general affairs by t
he central authorities; and hence while the rule is also fundamental that the po
wer to make laws cannot be delegated, the creation of the municipalities exercis
ing local self government has never been held to trench upon that rule. Such leg
islation is not regarded as a transfer of general legislative power, but rather
as the grant of the authority to prescribed local regulations, according to imme
morial 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 territ
ories of the United States as it may select. A territory stands in the same rela
tion to Congress as a municipality or city to the state government. (United Stat
es 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 dele
gation of legislative power to the people at large. Some authorities maintain th
at this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing Peop
le vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). H
owever, the question of whether or not a state has ceased to be republican in fo
rm 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. Oreg
on [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 progr

essive courts, the sting of the decisions of the more conservative courts has be
en 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., 37
9; 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 Const
itution itself. Section 14, paragraph 2, of article VI of the Constitution of th
e Philippines provides that "The National Assembly may by law authorize the Pres
ident, subject to such limitations and restrictions as it may impose, to fix wit
hin specified limits, tariff rates, import or export quotas, and tonnage and wha
rfage dues." And section 16 of the same article of the Constitution provides tha
t "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 declare
d national policy." It is beyond the scope of this decision to determine whether
or not, in the absence of the foregoing constitutional provisions, the Presiden
t could be authorized to exercise the powers thereby vested in him. Upon the oth
er hand, whatever doubt may have existed has been removed by the Constitution it
self.
The case before us does not fall under any of the exceptions hereinabove men
tioned.
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 provinc
ial boards have provided for the salary of a probation officer at rates not lowe
r than those now provided for provincial fiscals. Said probation officer shall b
e 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 p
ower 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 w
as 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 discre
tion, to issue a proclamation fixing the price of rice and to make the sale of i
t in violation of the proclamation a crime. (See and cf. Compaia General de Tabac
os 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 d
etail may be left to be filled in by rules and regulations to be adopted or prom
ulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-17
9.)
For the purpose of Probation Act, the provincial boards may be regarded as a
dministrative bodies endowed with power to determine when the Act should take ef
fect in their respective provinces. They are the agents or delegates of the legi
slature 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 o
n delegation of power to administrative bodies will show that the ratio decidend
i is at variance but, it can be broadly asserted that the rationale revolves aro
und the presence or absence of a standard or rule of action
or the sufficiency t
hereof 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 in
sufficient; and in still others that it is entirely lacking. As a rule, an act o
f the legislature is incomplete and hence invalid if it does not lay down any ru
le or definite standard by which the administrative officer or board may be guid
ed 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 "Con
stitutional Law", sec 174.) In the case at bar, what rules are to guide the prov
incial boards in the exercise of their discretionary power to determine whether
or not the Probation Act shall apply in their respective provinces? What standar
ds are fixed by the Act? We do not find any and none has been pointed to us by t
he respondents. The probation Act does not, by the force of any of its provision
s, fix and impose upon the provincial boards any standard or guide in the exerci
se 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 t
he benefits of the Probation Act to the provinces but in reality leaves the enti
re matter for the various provincial boards to determine. In other words, the pr
ovincial boards of the various provinces are to determine for themselves, whethe
r the Probation Law shall apply to their provinces or not at all. The applicabil
ity 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 applie
d 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 su
rrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of pow
er 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 exercis
ed 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 Co
mrs. [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 C
ardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provinci
al Board of Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Ph
il., 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 mun
icipal boundaries. In the second case, this court held it lawful for the legisla
ture to direct non-Christian inhabitants to take up their habitation on unoccupi
ed lands to be selected by the provincial governor and approved by the provincia
l board. In the third case, it was held proper for the legislature to vest in th
e Governor-General authority to suspend or not, at his discretion, the prohibiti
on of the importation of the foreign cattle, such prohibition to be raised "if t
he conditions of the country make this advisable or if deceased among foreign ca
ttle 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 provi
sions 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. Pr
ovincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect a
s 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. Sout
hard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United Sta
te 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 s
uch 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 int
o effect of a law. That is a mental process common to all branches of the govern
ment. (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., 49
5; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax t
he rule prohibiting delegation of legislative authority on account of the comple
xity arising from social and economic forces at work in this modern industrial a
ge (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of Parliam
ents", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "SquirtGun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152
), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limi
tations finds restatement in Prof. Willoughby's treatise on the Constitution of
the United States in the following language
speaking of declaration of legislati
ve power to administrative agencies: "The principle which permits the legislatur
e 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 ess
ence of the legislative act, is determined by the legislature. In other words, t
he legislature, as it its duty to do, determines that, under given circumstances
, certain executive or administrative action is to be taken, and that, under oth
er circumstances, different of no action at all is to be taken. What is thus lef
t to the administrative official is not the legislative determination of what pu
blic 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 o
f the contingency upon which the Act shall take effect may be left to such agenc
ies 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 b
ar, the legislature has not made the operation of the Prohibition Act contingent
upon specified facts or conditions to be ascertained by the provincial board. I
t 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 fi
nd 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. I
t may take into consideration certain facts or conditions; and, again, it may no
t. It may have any purpose or no purpose at all. It need not give any reason wha
tsoever for refusing or failing to appropriate any funds for the salary of a pro
bation officer. This is a matter which rest entirely at its pleasure. The fact t
hat 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 operatio
n in the various provinces will not save the statute. The time of its taking int
o effect, we reiterate, would yet be based solely upon the will of the provincia
l 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 pow
er of suspending the operation of the Probation Law in their respective province
s. 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 Const

itution 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 Consti
tution of Indiana provides "That the operation of the laws shall never be suspen
ded, 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 m
ay be undoubted that the legislature may suspend a law, or the execution or oper
ation of a law, a law may not be suspended as to certain individuals only, leavi
ng the law to be enjoyed by others. The suspension must be general, and cannot b
e 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 b
y authority derived from it, to be exercised in such particular cases only as th
e legislature shall expressly provide for. Many of the articles in that declarat
ion of rights were adopted from the Magna Charta of England, and from the bill o
f 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 extirpat
e the protestant religion, and the laws and liberties of the kingdom; and the fi
rst of them is the assuming and exercising a power of dispensing with and suspen
ding 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 parliame
nt, 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 reserv
ation of authority in the parliament to exercise the power here mentioned; becau
se, according to the theory of the English Constitution, "that absolute despotic
power, which must in all governments reside somewhere," is intrusted to the par
liament: 1 Bl. Com., 160.
The principles of our government are widely different in this particular. He
re the sovereign and absolute power resides in the people; and the legislature c
an 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 t
o 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 suppose
d 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 o
n the general court one of the most odious and oppressive prerogatives of the an
cient kings of England. It is manifestly contrary to the first principles of civ
il 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 th
e 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 o
f the act, power was given to the board of supervisors to determine whether or n
ot 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 legislatu
re 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 i
n such county the days of grace on commercial paper, or to suspend the statute o
f 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., 5

29;59 Am. Dec., 275.) In that case a general statute formulating a road system c
ontained a provision that "if the county court of any county should be of opinio
n that the provisions of the act should not be enforced, they might, in their di
scretion, suspend the operation of the same for any specified length of time, an
d thereupon the act should become inoperative in such county for the period spec
ified 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 co
unty. The act does not submit the question to the county court as an original qu
estion, to be decided by that tribunal, whether the act shall commence its opera
tion 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 a
ny act in order to give it effect. But being the law in the county, and having b
y its provisions superseded and abrogated the inconsistent provisions of previou
s 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 co
urt for that tribunal to determine which law shall be in force, it is urge befor
e us that the power then to be exercised by the court is strictly legislative po
wer, which under our constitution, cannot be delegated to that tribunal or to an
y other body of men in the state. In the present case, the question is not prese
nted in the abstract; for the county court of Saline county, after the act had b
een for several months in force in that county, did by order suspend its operati
on; 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 fro
m those applicable to other localities and, while recognizing the force of the p
rinciple hereinabove expressed, courts in may jurisdiction have sustained the co
nstitutionality 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 plac
ed under different circumstances. "They relate to subjects which, like the retai
ling 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 w
hat seems to us the impregnable ground, that the subject, though not embraced wi
thin the ordinary powers of municipalities to make by-laws and ordinances, is ne
vertheless within the class of public regulations, in respect to which it is pro
per that the local judgment should control." (Cooley on Constitutional Limitatio
ns, 5th ed., p. 148.) So that, while we do not deny the right of local self-gove
rnment 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 be
lieve that in matters of general of general legislation like that which treats o
f criminals in general, and as regards the general subject of probation, discret
ion 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, con
sidering that, in being vested with the authority to appropriate or not the nece
ssary funds for the salaries of probation officers, they thereby are given absol
ute discretion to determine whether or not the law should take effect or operate
in their respective provinces, the provincial boards are in reality empowered b
y the legislature to suspend the operation of the Probation Act in particular pr
ovinces, the Act to be held in abeyance until the provincial boards should decid
e otherwise by appropriating the necessary funds. The validity of a law is not t
ested by what has been done but by what may be done under its provisions. (Walte
r E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 7
86.)
It in conceded that a great deal of latitude should be granted to the legisl

ature not only in the expression of what may be termed legislative policy but in
the elaboration and execution thereof. "Without this power, legislation would b
ecome oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has b
een 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 n
o further restrained under our system than by the express language of the instru
ment imposing the restraint, or by particular provisions which by clear intendme
nt, 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 i
n 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, legislati
ve power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unla
wful delegation of legislative authority to the provincial boards and is, for th
is reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of ou
r Bill of Rights which prohibits the denial to any person of the equal protectio
n 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 instrume
ntalities and subdivision thereof, and on many constitutional power, like the po
lice power, taxation and eminent domain. The equal protection of laws, sententio
usly observes the Supreme Court of the United States, "is a pledge of the protec
tion of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 2
20; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. C
t. 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 Pip
e 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 c
lassification on a reasonable basis, and nor made arbitrarily or capriciously, i
s permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 S
up. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 L
aw. 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 subs
tantial distinctions which make real differences; it must be germane to the purp
oses of the law; it must not be limited to existing conditions only, and must ap
ply 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., 3
75; 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; Tr
uax 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 fr
om 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, whi
le another province may refuse or fail to do so. In such a case, the Probation A
ct would be in operation in the former province but not in the latter. This mean
s that a person otherwise coming within the purview of the law would be liable t
o enjoy the benefits of probation in one province while another person similarly
situated in another province would be denied those same benefits. This is obnox

ious discrimination. Contrariwise, it is also possible for all the provincial bo

ards to appropriate the necessary funds for the salaries of the probation office
rs in their respective provinces, in which case no inequality would result for t
he obvious reason that probation would be in operation in each and every provinc
e by the affirmative action of appropriation by all the provincial boards. On th
at 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 resu
lting inequality if no province, through its provincial board, should appropriat
e 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 Ac
t, 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 probatio
n officer. These different situations suggested show, indeed, that while inequal
ity may result in the application of the law and in the conferment of the benefi
ts therein provided, inequality is not in all cases the necessary result. But wh
atever may be the case, it is clear that in section 11 of the Probation Act crea
tes a situation in which discrimination and inequality are permitted or allowed.
There are, to be sure, abundant authorities requiring actual denial of the equa
l protection of the law before court should assume the task of setting aside a l
aw vulnerable on that score, but premises and circumstances considered, we are o
f 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. Freema
n [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. C
rowley [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, st
atutes may be adjudged unconstitutional because of their effect in operation (Ge
neral Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. e
d., 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. M
ontgomery, 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 province
s and not be in force in other provinces, but one province may appropriate for t
he salary of the probation officer of a given year and have probation during tha
t year and thereafter decline to make further appropriation, and have no probati
on is subsequent years. While this situation goes rather to the abuse of discret
ion which delegation implies, it is here indicated to show that the Probation Ac
t sanctions a situation which is intolerable in a government of laws, and to pro
ve how easy it is, under the Act, to make the guaranty of the equality clause bu
t "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 Ocamp
o vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, th
e Supreme Court of the United States affirmed the decision of this court (18 Phi
l., 1) by declining to uphold the contention that there was a denial of the equa
l protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewi
s) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equal
ity clause does not require territorial uniformity. It should be observed, howev
er, that this case concerns the right to preliminary investigations in criminal

cases originally granted by General Orders No. 58. No question of legislative au

thority 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 def
endant . . . shall not be entitled as of right to a preliminary examination in a
ny case where the prosecuting attorney, after a due investigation of the facts .
. . shall have presented an information against him in proper form . . . ." Upo
n the other hand, an analysis of the arguments and the decision indicates that t
he investigation by the prosecuting attorney
although not in the form had in the
provinces was considered a reasonable substitute for the City of Manila, consid
ering 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, exc
ept those in certain counties for which counties the constitution establishes a
separate court of appeals called St. Louis Court of Appeals. The provision compl
ained of, then, is found in the constitution itself and it is the constitution t
hat makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitution
al and void because it is also repugnant to equal-protection clause of our Const
itution.
Section 11 of the Probation Act being unconstitutional and void for the reas
ons 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 unconstit
utional provision is interjected into a statute otherwise valid, and is so indep
endent and separable that its removal will leave the constitutional features and
purposes of the act substantially unaffected by the process. (Riccio vs. Hoboke
n, 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, 4
7), 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 Legi
slative 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 Dra
inage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a compl
ete, 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 eli
minated without causing results affecting the main purpose of the Act, in a mann
er 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., 1
135; 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 wh
atever, 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 appli
cable only in those provinces in which the respective provincial boards provided
for the salaries of probation officers were inoperative on constitutional groun
ds, 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 s
ystem, devoid of any practical benefit to a large number of people who may be de
serving of the intended beneficial result of that system. The clear policy of th
e 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 actio
n of the different provincial boards through appropriation of the salaries for p
robation officers at rates not lower than those provided for provincial fiscals.
Without such action on the part of the various boards, no probation officers wo
uld be appointed by the Secretary of Justice to act in the provinces. The Philip
pines is divided or subdivided into provinces and it needs no argument to show t
hat 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 N
o. 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 an
d visit the probationer. Every probation officer is given, as to the person plac
ed 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 co
urt upon the probationer under his care are complied with. Among those condition
s, 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 probat
ion officers;
(d) Shall permit the probation officer to visit him at reasonable times at h
is place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the prob
ation officer concerning his conduct or condition; "(f) Shall endeavor to be emp
loyed regularly; "(g) Shall remain or reside within a specified place or localit
y;
(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; a
nd
(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 peri
od and terms of probation. Under section 4, it is only after the period of proba
tion, the submission of a report of the probation officer and appropriate findin
g of the court that the probationer has complied with the conditions of probatio

n that probation may be definitely terminated and the probationer finally discha
rged from supervision. Under section 5, if the court finds that there is non-com
pliance 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 committ
ed 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 cour
t shall order the execution of the sentence originally imposed. Section 6 prescr
ibes 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 st
atement of the period and conditions of their probation, and to instruct them co
ncerning the same; to keep informed concerning their conduct and condition; to a
id and encourage them by friendly advice and admonition, and by such other measu
res, not inconsistent with the conditions imposed by court as may seem most suit
able, to bring about improvement in their conduct and condition; to report in wr
iting to the court having jurisdiction over said probationers at least once ever
y two months concerning their conduct and condition; to keep records of their wo
rk; make such report as are necessary for the information of the Secretary of Ju
stice and as the latter may require; and to perform such other duties as are con
sistent with the functions of the probation officer and as the court or judge ma
y direct. The probation officers provided for in this Act may act as parole offi
cers for any penal or reformatory institution for adults when so requested by th
e authorities thereof, and, when designated by the Secretary of Justice shall ac
t as parole officer of persons released on parole under Act Number Forty-one Hun
dred 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 supe
rvision 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 disbu
rsed by the Secretary of Justice, who is hereby authorized to appoint probation
officers and the administrative personnel of the probation officer under civil s
ervice regulations from among those who possess the qualifications, training and
experience prescribed by the Bureau of Civil Service, and shall fix the compens
ation of such probation officers and administrative personnel until such positio
ns shall have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in t
he foregoing section are clearly not those probation officers required to be app
ointed for the provinces under section 11. It may be said, reddendo singula sing
ulis, 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 th
e Probation Office established in the Department of Justice, under the supervisi
on of the Chief Probation Officer. When the law provides that "the probation off
icer" 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, p
ar. 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), s
hall truthfully answer any reasonable inquiries on the part of "the probation of
ficer" concerning his conduct or condition (sec. 3, par. 4); that the court shal
l 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 parti
cular probationer in a particular province. It never could have been intention o
f the legislature, for instance, to require the probationer in Batanes, to repor
t to a probationer officer in the City of Manila, or to require a probation offi
cer 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 co
nditions 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 th
e law is. Between is and ought there is a far cry. The wisdom and propriety of l
egislation 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 judici
al legislation we decline to amend the law. We are not permitted to read into th
e law matters and provisions which are not there. Not for any purpose
not even t
o save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to mak
e the Insular Government defray the salaries of probation officers in the provin
ces but to make the provinces defray them should they desire to have the Probati
on Act apply thereto. The sum of P50,000, appropriated "to carry out the purpose
s of this Act", is to be applied, among other things, for the salaries of probat
ion officers in the central office at Manila. These probation officers are to re
ceive such compensations as the Secretary of Justice may fix "until such positio
ns shall have been included in the Appropriation Act". It was the intention of t
he legislature to empower the Secretary of Justice to fix the salaries of the pr
obation officers in the provinces or later on to include said salaries in an app
ropriation act. Considering, further, that the sum of P50,000 appropriated in se
ction 10 is to cover, among other things, the salaries of the administrative per
sonnel of the Probation Office, what would be left of the amount can hardly be s
aid to be sufficient to pay even nominal salaries to probation officers in the p
rovinces. 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 provinc
e, as intended, a probation officer with a salary not lower than that of a provi
ncial fiscal. If this a correct, the contention that without section 11 of Act N
o. 4221 said act is complete is an impracticable thing under the remainder of th
e 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. Pro
bation laws have been enacted, here and in other countries, to permit what moder
n criminologist call the "individualization of the punishment", the adjustment o
f the penalty to the character of the criminal and the circumstances of his part
icular 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 refo
rmed 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. H
echt, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. Th
e benefit to the individual convict is merely incidental. But while we believe t
hat probation is commendable as a system and its implantation into the Philippin
es should be welcomed, we are forced by our inescapable duty to set the law asid
e 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 memorandum
s 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 the
n analysis of the legal principles involved we have inclined to adopt the line o
f action which in our opinion, is supported better reasoned authorities and is m

ore conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 4
0 Phil., 136.) Realizing the conflict of authorities, we have declined to be bou
nd by certain adjudicated cases brought to our attention, except where the point
or principle is settled directly or by clear implication by the more authoritat
ive pronouncements of the Supreme Court of the United States. This line of appro
ach is justified because:
(a) The constitutional relations between the Federal and the State governmen
ts of the United States and the dual character of the American Government is a s
ituation which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columb
ia with reference to the Federal Government of the United States is not the situ
ation 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 Fe
d. [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 (Schneck
enburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in L
ochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to k
eep 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; 2
4 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), funda
mental 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 pr
ohibition is, accordingly, granted. Without any pronouncement regarding costs. S
o ordered.
Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.
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