Republic of the PhilippinesSUPREME COURTManila

EN BANC

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

THE PEOPLE OF THE PHILIPPINE ISLANDS and

HONGKONG & SHANGHAI BANKING CORPORATION,
petitioners, vs.JOSE O. VERA, Judge . of the Court of
First Instance of Manila, and MARIANO CU UNJIENG,
respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz

for the Government.De Witt, Perkins and Ponce Enrile for
the Hongkong and Shanghai Banking Corporation.Vicente
J. Francisco, Feria and La O, Orense and Belmonte, and
Gibbs and McDonough for respondent Cu Unjieng.No
appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on

August 19, 1937, for the issuance of the writ of certiorari
and of prohibition to the Court of First Instance of Manila
so that this court may review the actuations of the
aforesaid Court of First Instance in criminal case No.
42649 entitled "The People of the Philippine Islands vs.
Mariano Cu Unjieng, et al.", more particularly the
application of the defendant Mariano Cu Unjieng therein
for probation under the provisions of Act No. 4221, and
thereafter prohibit the said Court of First Instance from
taking any further action or entertaining further the
aforementioned application for probation, to the end that
the defendant Mariano Cu Unjieng may be forthwith
committed to prison in accordance with the final judgment
of conviction rendered by this court in said case (G. R. No.
41200). 1

Petitioners herein, the People of the Philippine and

the Hongkong and Shanghai Banking Corporation, are
respectively the plaintiff and the offended party, and the
respondent herein Mariano Cu Unjieng is one of the
defendants, in the criminal case entitled "The People of
the Philippine Islands vs. Mariano Cu Unjieng, et al.",
criminal case No. 42649 of the Court of First Instance of
Manila and G.R. No. 41200 of this court. Respondent
herein, Hon. Jose O. Vera, is the Judge ad interim of the
seventh branch of the Court of First Instance of Manila,
who heard the application of the defendant Mariano Cu
Unjieng for probation in the aforesaid criminal case.

The information in the aforesaid criminal case was

filed with the Court of First Instance of Manila on October
15, 1931, petitioner herein Hongkong and Shanghai
Banking Corporation intervening in the case as private
prosecutor. After a protracted trial unparalleled in the
annals of Philippine jurisprudence both in the length of
time spent by the court as well as in the volume in the
testimony and the bulk of the exhibits presented, the
Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the
defendant Mariano Cu Unjieng to indeterminate penalty
ranging from four years and two months of prision
correccional to eight years of prision mayor, to pay the
costs and with reservation of civil action to the offended
party, the Hongkong and Shanghai Banking Corporation.
Upon appeal, the court, on March 26, 1935, modified the
sentence to an indeterminate penalty of from five years
and six months of prision correccional to seven years, six
months and twenty-seven days of prision mayor, but
affirmed the judgment in all other respects. Mariano Cu
Unjieng filed a motion for reconsideration and four
successive motions for new trial which were denied on
December 17, 1935, and final judgment was accordingly
entered on December 18, 1935. The defendant thereupon
sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied
the petition for certiorari in November, 1936. This
court, on November 24, 1936, denied the petition
subsequently filed by the defendant for leave to file a
second alternative motion for reconsideration or new trial
and thereafter remanded the case to the court of origin for
execution of the judgment.
 The instant proceedings have to do with the
application for probation filed by the herein respondent
Mariano Cu Unjieng on November 27, 1936, before
the trial court, under the provisions of Act No. 4221 of the
defunct Philippine Legislature. Herein respondent Mariano
Cu Unjieng states in hias petition, inter alia, that he is
innocent of the crime of which he was convicted, that he
has no criminal record and that he would observe good
conduct in the future. The Court of First Instance of
Manila, Judge Pedro Tuason presiding, referred the
application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937.
Thereafter, the Court of First Instance of Manila, seventh
branch, Judge Jose O. Vera presiding, set the petition for
hearing on April 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed

an opposition to the granting of probation to the herein
respondent Mariano Cu Unjieng. The private prosecution
also filed an opposition on April 5, 1937, alleging, among
other things, that Act No. 4221, assuming that it has not
been repealed by section 2 of Article XV of the
Constitution, is nevertheless violative of section 1,
subsection (1), Article III of the Constitution guaranteeing
equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and
because section 11 of the said Act endows the provincial
boards with the power to make said law effective or
otherwise in their respective or otherwise in their
respective provinces. The private prosecution also filed a
supplementary opposition on April 19, 1937, elaborating
on the alleged unconstitutionality on Act No. 4221, as an
undue delegation of legislative power to the provincial
boards of several provinces (sec. 1, Art. VI, Constitution).
The City Fiscal concurred in the opposition of the private
prosecution except with respect to the questions raised
concerning the constitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O.

Vera promulgated a resolution with a finding that "las
pruebas no han establecido de unamanera concluyente la
culpabilidad del peticionario y que todos los hechos
probados no son inconsistentes o incongrentes con su
inocencia" and concludes that the herein respondent
Mariano Cu Unjieng "es inocente por duda racional" of the
crime of which he stands convicted by this court in G.R.
No. 41200, but denying the latter's petition for probation
for the reason that:

. . . Si este Juzgado concediera la poblacion

solicitada por las circunstancias y la historia social que se
han expuesto en el cuerpo de esta resolucion, que hacen
al peticionario acreedor de la misma, una parte de la
opinion publica, atizada por los recelos y las suspicacias,
podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos
ordinarios de una causa criminal perturbando la quietud y
la eficacia de las decisiones ya recaidas al traer a la
superficie conclusiones enteramente differentes, en
menoscabo del interes publico que demanda el respeto de
las leyes y del veredicto judicial.

On July 3, 1937, counsel for the herein respondent

Mariano Cu Unjieng filed an exception to the resolution
denying probation and a notice of intention to file a
motion for reconsideration. An alternative motion for
reconsideration or new trial was filed by counsel on July
13, 1937. This was supplemented by an additional motion
for reconsideration submitted on July 14, 1937. The
aforesaid motions were set for hearing on July 31, 1937,
but said hearing was postponed at the petition of counsel
for the respondent Mariano Cu Unjieng because a motion
for leave to intervene in the case as amici curiae signed
by thirty-three (thirty-four) attorneys had just been filed
with the trial court. Attorney Eulalio Chaves whose
signature appears in the aforesaid motion subsequently
filed a petition for leave to withdraw his appearance as
amicus curiae on the ground that the motion for leave to
intervene as amici curiae was circulated at a banquet
given by counsel for Mariano Cu Unjieng on the evening of
July 30, 1937, and that he signed the same "without
mature deliberation and purely as a matter of courtesy to
the person who invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila

filed a motion with the trial court for the issuance of an
order of execution of the judgment of this court in said
case and forthwith to commit the herein respondent
Mariano Cu Unjieng to jail in obedience to said judgment.

On August 7, 1937, the private prosecution filed its

opposition to the motion for leave to intervene as amici
curiae aforementioned, asking that a date be set for a
hearing of the same and that, at all events, said motion
should be denied with respect to certain attorneys signing
the same who were members of the legal staff of the
several counsel for Mariano Cu Unjieng. On August 10,
1937, herein respondent Judge Jose O. Vera issued an
order requiring all parties including the movants for
intervention as amici curiae to appear before the court on
August 14, 1937. On the last-mentioned date, the Fiscal of
the City of Manila moved for the hearing of his motion for
execution of judgment in preference to the motion for
leave to intervene as amici curiae but, upon objection of
counsel for Mariano Cu Unjieng, he moved for the
postponement of the hearing of both motions. The
respondent judge thereupon set the hearing of the motion
for execution on August 21, 1937, but proceeded to
consider the motion for leave to intervene as amici curiae
as in order. Evidence as to the circumstances under which
said motion for leave to intervene as amici curiae was
signed and submitted to court was to have been heard on
August 19, 1937. But at this juncture, herein petitioners
came to this court on extraordinary legal process to put an
end to what they alleged was an interminable proceeding
in the Court of First Instance of Manila which fostered "the
campaign of the defendant Mariano Cu Unjieng for delay
in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism
and ridicule because of the apparent inability of the
judicial machinery to make effective a final judgment of
this court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was

accordingly suspended upon the issuance of a temporary
restraining order by this court on August 21, 1937.

To support their petition for the issuance of the

extraordinary writs of certiorari and prohibition, herein
petitioners allege that the respondent judge has acted
without jurisdiction or in excess of his jurisdiction:

I. Because said respondent judge lacks the power to place

respondent Mariano Cu Unjieng under probation for the
following reason:

(1) Under section 11 of Act No. 4221, the said of the

Philippine Legislature is made to apply only to the
provinces of the Philippines; it nowhere states that it is to
be made applicable to chartered cities like the City of
Manila.

(2) While section 37 of the Administrative Code contains a

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

(3) Even if the City of Manila were considered to be a

province, still, Act No. 4221 would not be applicable to it
because it has provided for the salary of a probation
officer as required by section 11 thereof; it being
immaterial that there is an Insular Probation Officer willing
to act for the City of Manila, said Probation Officer
provided for in section 10 of Act No. 4221 being different
and distinct from the Probation Officer provided for in
section 11 of the same Act.

II. Because even if the respondent judge originally had

jurisdiction to entertain the application for probation of the
respondent Mariano Cu Unjieng, he nevertheless acted
without jurisdiction or in excess thereof in continuing to
entertain the motion for reconsideration and by failing to
commit Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937, denying
Mariano Cu Unjieng's application for probation, for the
reason that:
(1) His jurisdiction and power in probation proceedings is
limited by Act No. 4221 to the granting or denying of
applications for probation.

(2) After he had issued the order denying Mariano Cu

Unjieng's petition for probation on June 28, 1937, it
became final and executory at the moment of its
rendition.

(3) No right on appeal exists in such cases.

(4) The respondent judge lacks the power to grant a

rehearing of said order or to modify or change the same.

III. Because the respondent judge made a finding that

Mariano Cu Unjieng is innocent of the crime for which he
was convicted by final judgment of this court, which
finding is not only presumptuous but without foundation in
fact and in law, and is furthermore in contempt of this
court and a violation of the respondent's oath of office as
ad interim judge of first instance.

IV. Because the respondent judge has violated and

continues to violate his duty, which became imperative
when he issued his order of June 28, 1937, denying the
application for probation, to commit his co-respondent to
jail.

Petitioners also avers that they have no other plain,

speedy and adequate remedy in the ordinary course of
law.

In a supplementary petition filed on September 9,

1937, the petitioner Hongkong and Shanghai Banking
Corporation further contends that Act No. 4221 of the
Philippine Legislature providing for a system of probation
for persons eighteen years of age or over who are
convicted of crime, is unconstitutional because it is
violative of section 1, subsection (1), Article III, of the
Constitution of the Philippines guaranteeing equal
protection of the laws because it confers upon the
provincial board of its province the absolute discretion to
make said law operative or otherwise in their respective
provinces, because it constitutes an unlawful and
improper delegation to the provincial boards of the several
provinces of the legislative power lodged by the Jones Law
(section 8) in the Philippine Legislature and by the
Constitution (section 1, Art. VI) in the National Assembly;
and for the further reason that it gives the provincial
boards, in contravention of the Constitution (section 2, Art.
VIII) and the Jones Law (section 28), the authority to
enlarge the powers of the Court of First Instance of
different provinces without uniformity. In another
supplementary petition dated September 14, 1937, the
Fiscal of the City of Manila, in behalf of one of the
petitioners, the People of the Philippine Islands, concurs
for the first time with the issues raised by other petitioner
regarding the constitutionality of Act No. 4221, and on the
oral argument held on October 6, 1937, further elaborated
on the theory that probation is a form of reprieve and
therefore Act. No. 4221 is an encroachment on the
exclusive power of the Chief Executive to grant pardons
and reprieves. On October 7, 1937, the City Fiscal filed
two memorandums in which he contended that Act No.
4221 not only encroaches upon the pardoning power to
the executive, but also constitute an unwarranted
delegation of legislative power and a denial of the equal
protection of the laws. On October 9, 1937, two
memorandums, signed jointly by the City Fiscal and the
Solicitor-General, acting in behalf of the People of the
Philippine Islands, and by counsel for the petitioner, the
Hongkong and Shanghai Banking Corporation, one
sustaining the power of the state to impugn the validity of
its own laws and the other contending that Act No. 4221
constitutes an unwarranted delegation of legislative
power, were presented. Another joint memorandum was
filed by the same persons on the same day, October 9,
1937, alleging that Act No. 4221 is unconstitutional
because it denies the equal protection of the laws and
constitutes an unlawful delegation of legislative power
and, further, that the whole Act is void: that the
Commonwealth is not estopped from questioning the
validity of its laws; that the private prosecution may
intervene in probation proceedings and may attack the
probation law as unconstitutional; and that this court may
pass upon the constitutional question in prohibition
proceedings.

Respondents in their answer dated August 31, 1937,

as well as in their oral argument and memorandums,
challenge each and every one of the foregoing proposition
raised by the petitioners.

As special defenses, respondents allege:

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

(2) That the aforesaid petition is premature because the

remedy sought by the petitioners is the very same remedy
prayed for by them before the trial court and was still
pending resolution before the trial court when the present
petition was filed with this court.

(3) That the petitioners having themselves raised the

question as to the execution of judgment before the trial
court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution
denying probation is unappealable.

(4) That upon the hypothesis that this court has

concurrent jurisdiction with the Court of First Instance to
decide the question as to whether or not the execution will
lie, this court nevertheless cannot exercise said
jurisdiction while the Court of First Instance has assumed
jurisdiction over the same upon motion of herein
petitioners themselves.

(5) That upon the procedure followed by the herein

petitioners in seeking to deprive the trial court of its
jurisdiction over the case and elevate the proceedings to
this court, should not be tolerated because it impairs the
authority and dignity of the trial court which court while
sitting in the probation cases is "a court of limited
jurisdiction but of great dignity."

(6) That under the supposition that this court has

jurisdiction to resolve the question submitted to and
pending resolution by the trial court, the present action
would not lie because the resolution of the trial court
denying probation is appealable; for although the
Probation Law does not specifically provide that an
applicant for probation may appeal from a resolution of
the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order, resolution
or decision of an inferior court is appealable to the
superior court.

(7) That the resolution of the trial court denying probation

of herein respondent Mariano Cu Unjieng being
appealable, the same had not become final and executory
for the reason that the said respondent had filed an
alternative motion for reconsideration and new trial within
the requisite period of fifteen days, which motion the trial
court was able to resolve in view of the restraining order
improvidently and erroneously issued by this court. lawphi1.net

(8) That the Fiscal of the City of Manila had by implication

admitted that the resolution of the trial court denying
probation is not final and unappealable when he
presented his answer to the motion for reconsideration
and agreed to the postponement of the hearing of the said
motion.

(9) That under the supposition that the order of the trial
court denying probation is not appealable, it is incumbent
upon the accused to file an action for the issuance of the
writ of certiorari with mandamus, it appearing that the
trial court, although it believed that the accused was
entitled to probation, nevertheless denied probation for
fear of criticism because the accused is a rich man; and
that, before a petition for certiorari grounded on an
irregular exercise of jurisdiction by the trial court could lie,
it is incumbent upon the petitioner to file a motion for
reconsideration specifying the error committed so that the
trial court could have an opportunity to correct or cure the
same.

(10) That on hypothesis that the resolution of this court is

not appealable, the trial court retains its jurisdiction within
a reasonable time to correct or modify it in accordance
with law and justice; that this power to alter or modify an
order or resolution is inherent in the courts and may be
exercise either motu proprio or upon petition of the proper
party, the petition in the latter case taking the form of a
motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial

court is appealable as respondent allege, said court
cannot order execution of the same while it is on appeal,
for then the appeal would not be availing because the
doors of probation will be closed from the moment the
accused commences to serve his sentence (Act No. 4221,
sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937,

counsel for the respondents maintain that Act No. 4221 is
constitutional because, contrary to the allegations of the
petitioners, it does not constitute an undue delegation of
legislative power, does not infringe the equal protection
clause of the Constitution, and does not encroach upon
the pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for the
respondents reiterate the view that section 11 of Act No.
4221 is free from constitutional objections and contend, in
addition, that the private prosecution may not intervene in
probation proceedings, much less question the validity of
Act No. 4221; that both the City Fiscal and the Solicitor-
General are estopped from questioning the validity of the
Act; that the validity of Act cannot be attacked for the first
time before this court; that probation in unavailable; and
that, in any event, section 11 of the Act No. 4221 is
separable from the rest of the Act. The last memorandum
for the respondent Mariano Cu Unjieng was denied for
having been filed out of time but was admitted by
resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates on some
of the points raised by the respondents and refutes those
brought up by the petitioners.

In the scrutiny of the pleadings and examination of

the various aspects of the present case, we noted that the
court below, in passing upon the merits of the application
of the respondent Mariano Cu Unjieng and in denying said
application assumed the task not only of considering the
merits of the application, but of passing upon the
culpability of the applicant, notwithstanding the final
pronouncement of guilt by this court. (G.R. No. 41200.)
Probation implies guilt be final judgment. While a
probation case may look into the circumstances attending
the commission of the offense, this does not authorize it to
reverse the findings and conclusive of this court, either
directly or indirectly, especially wherefrom its own
admission reliance was merely had on the printed briefs,
averments, and pleadings of the parties. As already
observed by this court in Shioji vs. Harvey ([1922], 43
Phil., 333, 337), and reiterated in subsequent cases, "if
each and every Court of First Instance could enjoy the
privilege of overruling decisions of the Supreme Court,
there would be no end to litigation, and judicial chaos
would result." A becoming modesty of inferior courts
demands conscious realization of the position that they
occupy in the interrelation and operation of the
intergrated judicial system of the nation.

After threshing carefully the multifarious issues

raised by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian knot
and take up at once the two fundamental questions
presented, namely, (1) whether or not the constitutionality
of Act No. 4221 has been properly raised in these
proceedings; and (2) in the affirmative, whether or not
said Act is constitutional. Considerations of these issues
will involve a discussion of certain incidental questions
raised by the parties.

To arrive at a correct conclusion on the first

question, resort to certain guiding principles is necessary.
It is a well-settled rule that the constitutionality of an act
of the legislature will not be determined by the courts
unless that question is properly raised and presented
inappropriate cases and is necessary to a determination of
the case; i.e., the issue of constitutionality must be the
very lis mota presented. (McGirr vs. Hamilton and Abreu
[1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J.,
pp. 780-782, 783.)
 The question of the constitutionality of an act of the
legislature is frequently raised in ordinary actions.
Nevertheless, resort may be made to extraordinary legal
remedies, particularly where the remedies in the ordinary
course of law even if available, are not plain, speedy and
adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42
Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the
petitioner in mandamus proceedings (see, also, 12 C. J., p.
783); and in Government of the Philippine Islands vs.
Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S.,
189; 72 Law. ed., 845]), this court declared an act of the
legislature unconstitutional in an action of quo warranto
brought in the name of the Government of the Philippines.
It has also been held that the constitutionality of a statute
may be questioned in habeas corpus proceedings (12 C. J.,
p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117),
although there are authorities to the contrary; on an
application for injunction to restrain action under the
challenged statute (mandatory, see Cruz vs. Youngberg
[1931], 56 Phil., 234); and even on an application for
preliminary injunction where the determination of the
constitutional question is necessary to a decision of the
case. (12 C. J., p. 783.) The same may be said as regards
prohibition and certiorari.(Yu Cong Eng vs. Trinidad
[1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed.,
1059; Bell vs. First Judicial District Court [1905], 28 Nev.,
280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L.
R. A. [N. S], 843, and cases cited). The case of Yu Cong
Eng vs. Trinidad, supra, decided by this court twelve years
ago was, like the present one, an original action for
certiorari and prohibition. The constitutionality of Act No.
2972, popularly known as the Chinese Bookkeeping Law,
was there challenged by the petitioners, and the
constitutional issue was not met squarely by the
respondent in a demurrer. A point was raised "relating to
the propriety of the constitutional question being decided
in original proceedings in prohibition." This court decided
to take up the constitutional question and, with two
justices dissenting, held that Act No. 2972 was
constitutional. The case was elevated on writ of certiorari
to the Supreme Court of the United States which reversed
the judgment of this court and held that the Act was
invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the
question of jurisdiction, however, the Federal Supreme
Court, though its Chief Justice, said:

By the Code of Civil Procedure of the Philippine

Islands, section 516, the Philippine supreme court is
granted concurrent jurisdiction in prohibition with courts of
first instance over inferior tribunals or persons, and
original jurisdiction over courts of first instance, when
such courts are exercising functions without or in excess
of their jurisdiction. It has been held by that court that the
question of the validity of the criminal statute must
usually be raised by a defendant in the trial court and be
carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil.,
192). But in this case where a new act seriously affected
numerous persons and extensive property rights, and was
likely to cause a multiplicity of actions, the Supreme Court
exercised its discretion to bring the issue to the act's
validity promptly before it and decide in the interest of the
orderly administration of justice. The court relied by
analogy upon the cases of Ex parte Young (209 U. S.,
123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct.
Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33;
60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7;
Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332;
61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep.,
298; Ann. Cas. 1918A, 1024). Although objection to the
jurisdiction was raise by demurrer to the petition, this is
now disclaimed on behalf of the respondents, and both
parties ask a decision on the merits. In view of the broad
powers in prohibition granted to that court under the
Island Code, we acquiesce in the desire of the parties.

The writ of prohibition is an extraordinary judicial

writ issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of preventing
the inferior tribunal from usurping a jurisdiction with which
it is not legally vested. (High, Extraordinary Legal
Remedies, p. 705.) The general rule, although there is a
conflict in the cases, is that the merit of prohibition will not
lie whether the inferior court has jurisdiction independent
of the statute the constitutionality of which is questioned,
because in such cases the interior court having jurisdiction
may itself determine the constitutionality of the statute,
and its decision may be subject to review, and
consequently the complainant in such cases ordinarily has
adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives
its jurisdiction exclusively from an unconstitutional
statute, it may be prevented by the writ of prohibition
from enforcing that statute. (50 C. J., 670; Ex parte Round
tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.],
365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799;
Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs.
Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs.
Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation

proceedings derived their jurisdiction solely from Act No.
4221 which prescribes in detailed manner the procedure
for granting probation to accused persons after their
conviction has become final and before they have served
their sentence. It is true that at common law the authority
of the courts to suspend temporarily the execution of the
sentence is recognized and, according to a number of
state courts, including those of Massachusetts, Michigan,
New York, and Ohio, the power is inherent in the courts
(Commonwealth vs. Dowdican's Bail [1874], 115 Mass.,
133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W.,
497; People ex rel. Forsyth vs. Court of Session [1894],
141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616).
But, in the leading case of Ex parte United States ([1916],
242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37
Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme
Court of the United States expressed the opinion that
under the common law the power of the court was limited
to temporary suspension, and brushed aside the
contention as to inherent judicial power saying, through
Chief Justice White:

Indisputably under our constitutional system the

right to try offenses against the criminal laws and upon
conviction to impose the punishment provided by law is
judicial, and it is equally to be conceded that, in exerting
the powers vested in them on such subject, courts
inherently possess ample right to exercise reasonable,
that is, judicial, discretion to enable them to wisely exert
their authority. But these concessions afford no ground for
the contention as to power here made, since it must rest
upon the proposition that the power to enforce begets
inherently a discretion to permanently refuse to do so.
And the effect of the proposition urged upon the
distribution of powers made by the Constitution will
become apparent when it is observed that indisputable
also is it that the authority to define and fix the
punishment for crime is legislative and includes the right
in advance to bring within judicial discretion, for the
purpose of executing the statute, elements of
consideration which would be otherwise beyond the scope
of judicial authority, and that the right to relieve from the
punishment, fixed by law and ascertained according to the
methods by it provided belongs to the executive
department.

Justice Carson, in his illuminating concurring opinion

in the case of Director of Prisons vs. Judge of First Instance
of Cavite (29 Phil., 265), decided by this court in 1915,
also reached the conclusion that the power to suspend the
execution of sentences pronounced in criminal cases is
not inherent in the judicial function. "All are agreed", he
said, "that in the absence of statutory authority, it does
not lie within the power of the courts to grant such
suspensions." (at p. 278.) Both petitioner and respondents
are correct, therefore, when they argue that a Court of
First Instance sitting in probation proceedings is a court of
limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine
Legislature.

It is, of course, true that the constitutionality of a

statute will not be considered on application for
prohibition where the question has not been properly
brought to the attention of the court by objection of some
kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499;
State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S.
W., 746). In the case at bar, it is unquestionable that the
constitutional issue has been squarely presented not only
before this court by the petitioners but also before the trial
court by the private prosecution. The respondent, Hon.
Jose O Vera, however, acting as judge of the court below,
declined to pass upon the question on the ground that the
private prosecutor, not being a party whose rights are
affected by the statute, may not raise said question. The
respondent judge cited Cooley on Constitutional
Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and
762), and McGlue vs. Essex County ([1916], 225 Mass.,
59; 113 N. E., 742, 743), as authority for the proposition
that a court will not consider any attack made on the
constitutionality of a statute by one who has no interest in
defeating it because his rights are not affected by its
operation. The respondent judge further stated that it may
not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a
legislative enactment void is one which the judge,
conscious of the fallibility of the human judgment, will
shrink from exercising in any case where he can
conscientiously and with due regard to duty and official
oath decline the responsibility" (Constitutional Limitations,
8th ed., Vol. I, p. 332), proceeded on the assumption that
Act No. 4221 is constitutional. While therefore, the court a
quo admits that the constitutional question was raised
before it, it refused to consider the question solely
because it was not raised by a proper party. Respondents
herein reiterates this view. The argument is advanced that
the private prosecution has no personality to appear in the
hearing of the application for probation of defendant
Mariano Cu Unjieng in criminal case No. 42648 of the
Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower
court. Although, as a general rule, only those who are
parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held that
since the decree pronounced by a court without
jurisdiction is void, where the jurisdiction of the court
depends on the validity of the statute in question, the
issue of the constitutionality will be considered on its
being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J.,
sec. 184, p. 766.) And, even if we were to concede that
the issue was not properly raised in the court below by the
proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and
prohibitions. It is true that, as a general rule, the question
of constitutionality must be raised at the earliest
opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised at the trial, and if not raised
in the trial court, it will not considered on appeal. (12 C. J.,
p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del
Rosario, 26 Phil., 192, 193-195.) But we must state that
the general rule admits of exceptions. Courts, in the
exercise of sounds discretion, may determine the time
when a question affecting the constitutionality of a statute
should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very
sharp conflict of authorities, it is said that the question
may be raised for the first time at any stage of the
proceedings, either in the trial court or on appeal. (12 C. J.,
p. 786.) Even in civil cases, it has been held that it is the
duty of a court to pass on the constitutional question,
though raised for the first time on appeal, if it appears
that a determination of the question is necessary to a
decision of the case. (McCabe's Adm'x vs. Maysville & B. S.
R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs.
St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W.
1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo.,
572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate
court at any time, where it involves the jurisdiction of the
court below (State vs. Burke [1911], 175 Ala., 561; 57 S.,
870.) As to the power of this court to consider the
constitutional question raised for the first time before this
court in these proceedings, we turn again and point with
emphasis to the case of Yu Cong Eng vs. Trinidad, supra.
And on the hypotheses that the Hongkong & Shanghai
Banking Corporation, represented by the private
prosecution, is not the proper party to raise the
constitutional question here — a point we do not now have
to decide — we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the
Fiscal of the City of Manila, is such a proper party in the
present proceedings. The unchallenged rule is that the
person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he
has sustained, or will sustained, direct injury as a result of
its enforcement. It goes without saying that if Act No.
4221 really violates the constitution, the People of the
Philippines, in whose name the present action is brought,
has a substantial interest in having it set aside. Of grater
import than the damage caused by the illegal expenditure
of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute.
Hence, the well-settled rule that the state can challenge
the validity of its own laws. In Government of the
Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine
Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court
declared an act of the legislature unconstitutional in an
action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkins ([1889], 73
Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of
Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents
to renew a mining corporation, alleging that the statute
under which the respondents base their right was
unconstitutional because it impaired the obligation of
contracts. The capacity of the chief law officer of the state
to question the constitutionality of the statute was though,
as a general rule, only those who are parties to a suit may
question the constitutionality of a statute involved in a
judicial decision, it has been held that since the decree
pronounced by a court without jurisdiction in void, where
the jurisdiction of the court depends on the validity of the
statute in question, the issue of constitutionality will be
considered on its being brought to the attention of the
court by persons interested in the effect to begin the
statute. (12 C.J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court
below by the proper party, it does not follow that the issue
may not be here raised in an original action of certiorari
and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest
opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised a the trial, and if not raised
in the trial court, it will not be considered on appeal. (12
C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs.
Del Rosario, 26 Phil., 192, 193-195.) But we must state
that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time
when a question affecting the constitutionality of a statute
should be presented. (In re Woolsey [19884], 95 N.Y., 135,
144.) Thus, in criminal cases, although there is a very
sharp conflict of authorities, it is said that the question
may be raised for the first time at any state of the
proceedings, either in the trial court or on appeal. (12 C.J.,
p. 786.) Even in civil cases, it has been held that it is the
duty of a court to pass on the constitutional question,
though raised for first time on appeal, if it appears that a
determination of the question is necessary to a decision of
the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co.
[1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St.
Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108;
Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87
S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any
time, where it involves the jurisdiction of the court below
(State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to
the power of this court to consider the constitutional
question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the
case of Yu Cong Eng. vs. Trinidad, supra. And on the
hypothesis that the Hongkong & Shanghai Banking
Corporation, represented by the private prosecution, is not
the proper party to raise the constitutional question here
— a point we do not now have to decide — we are of the
opinion that the People of the Philippines, represented by
the Solicitor-General and the Fiscal of the City of Manila, is
such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement. It goes
without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name
the present action is brought, has a substantial interest in
having it set aside. Of greater import than the damage
caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled
rule that the state can challenge the validity of its own
laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs.
Government of the Philippine Islands [1928], 277 U.S.,
189; 72 Law. ed., 845), this court declared an act of the
legislature unconstitutional in an action instituted in behalf
of the Government of the Philippines. In Attorney General
vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W.,
426, 428, 429), the State of Michigan, through its Attorney
General, instituted quo warranto proceedings to test the
right of the respondents to renew a mining corporation,
alleging that the statute under which the respondents
base their right was unconstitutional because it impaired
the obligation of contracts. The capacity of the chief law
officer of the state to question the constitutionality of the
statute was itself questioned. Said the Supreme Court of
Michigan, through Champlin, J.:

. . . The idea seems to be that the people are

estopped from questioning the validity of a law enacted by
their representatives; that to an accusation by the people
of Michigan of usurpation their government, a statute
enacted by the people of Michigan is an adequate answer.
The last proposition is true, but, if the statute relied on in
justification is unconstitutional, it is statute only in form,
and lacks the force of law, and is of no more saving effect
to justify action under it than if it had never been enacted.
The constitution is the supreme law, and to its behests the
courts, the legislature, and the people must bow . . . The
legislature and the respondents are not the only parties in
interest upon such constitutional questions. As was
remarked by Mr. Justice Story, in speaking of an
acquiescence by a party affected by an unconstitutional
act of the legislature: "The people have a deep and vested
interest in maintaining all the constitutional limitations
upon the exercise of legislative powers." (Allen vs.
Mckeen, 1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac.,

38, 40), an original action (mandamus) was brought by
the Attorney-General of Kansas to test the
constitutionality of a statute of the state. In disposing of
the question whether or not the state may bring the
action, the Supreme Court of Kansas said:

. . . the state is a proper party — indeed, the proper

party — to bring this action. The state is always interested
where the integrity of its Constitution or statutes is
involved.

"It has an interest in seeing that the will of the

Legislature is not disregarded, and need not, as an
individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57
Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac.,
839.)

Where the constitutionality of a statute is in doubt

the state's law officer, its Attorney-General, or county
attorney, may exercise his bet judgment as to what sort of
action he will bring to have the matter determined, either
by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by
mandamus to compel obedience to its terms (State vs.
Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to
restrain proceedings under its questionable provisions
(State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45
Pac., 122).

Other courts have reached the same conclusion

(See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W.,
1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State
vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs.
Board of County Comr's [1934], 39 Pac. [2d], 286; First
Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116
N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E.,
417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10,
11). In the case last cited, the Supreme Court of Luisiana
said:

It is contended by counsel for Herbert Watkins that

a district attorney, being charged with the duty of
enforcing the laws, has no right to plead that a law is
unconstitutional. In support of the argument three
decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La. Ann.,
1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and
State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La.
Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions
do not forbid a district attorney to plead that a statute is
unconstitutional if he finds if in conflict with one which it is
his duty to enforce. In State ex rel. Hall, District Attorney,
vs. Judge, etc., the ruling was the judge should not, merely
because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of
information charging a person with a violation of the
statute. In other words, a judge should not judicially
declare a statute unconstitutional until the question of
constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party
litigant. State ex rel. Nicholls, Governor, etc., is authority
for the proposition merely that an officer on whom a
statute imposes the duty of enforcing its provisions cannot
avoid the duty upon the ground that he considers the
statute unconstitutional, and hence in enforcing the
statute he is immune from responsibility if the statute be
unconstitutional. State ex rel. Banking Co., etc., is
authority for the proposition merely that executive
officers, e.g., the state auditor and state treasurer, should
not decline to perform ministerial duties imposed upon
them by a statute, on the ground that they believe the
statute is unconstitutional.

It is the duty of a district attorney to enforce the

criminal laws of the state, and, above all, to support the
Constitution of the state. If, in the performance of his duty
he finds two statutes in conflict with each other, or one
which repeals another, and if, in his judgment, one of the
two statutes is unconstitutional, it is his duty to enforce
the other; and, in order to do so, he is compelled to submit
to the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the
Legislature would be free from constitutional limitations in
the enactment of criminal laws.

The respondents do not seem to doubt seriously the

correctness of the general proposition that the state may
impugn the validity of its laws. They have not cited any
authority running clearly in the opposite direction. In fact,
they appear to have proceeded on the assumption that
the rule as stated is sound but that it has no application in
the present case, nor may it be invoked by the City Fiscal
in behalf of the People of the Philippines, one of the
petitioners herein, the principal reasons being that the
validity before this court, that the City Fiscal is estopped
from attacking the validity of the Act and, not authorized
challenge the validity of the Act in its application outside
said city. (Additional memorandum of respondents,
October 23, 1937, pp. 8,. 10, 17 and 23.)

The mere fact that the Probation Act has been

repeatedly relied upon the past and all that time has not
been attacked as unconstitutional by the Fiscal of Manila
but, on the contrary, has been impliedly regarded by him
as constitutional, is no reason for considering the People
of the Philippines estopped from nor assailing its validity.
For courts will pass upon a constitutional questions only
when presented before it in bona fide cases for
determination, and the fact that the question has not been
raised before is not a valid reason for refusing to allow it
to be raised later. The fiscal and all others are justified in
relying upon the statute and treating it as valid until it is
held void by the courts in proper cases.

It remains to consider whether the determination of

the constitutionality of Act No. 4221 is necessary to the
resolution of the instant case. For, ". . . while the court will
meet the question with firmness, where its decision is
indispensable, it is the part of wisdom, and just respect for
the legislature, renders it proper, to waive it, if the case in
which it arises, can be decided on other points." (Ex parte
Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447.
Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has
been held that the determination of a constitutional
question is necessary whenever it is essential to the
decision of the case (12 C. J., p. 782, citing Long Sault
Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y.
Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas.
1915D, 56; and app dism 242 U.S., 272]; Hesse vs.
Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22
Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R.
Commn., 146 Wis., 523; 129 N. W., 605), as where the
right of a party is founded solely on a statute the validity
of which is attacked. (12 C.J., p. 782, citing Central Glass
Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972;
Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is
no doubt that the respondent Cu Unjieng draws his
privilege to probation solely from Act No. 4221 now being
assailed.

Apart from the foregoing considerations, that court

will also take cognizance of the fact that the Probation Act
is a new addition to our statute books and its validity has
never before been passed upon by the courts; that may
persons accused and convicted of crime in the City of
Manila have applied for probation; that some of them are
already on probation; that more people will likely take
advantage of the Probation Act in the future; and that the
respondent Mariano Cu Unjieng has been at large for a
period of about four years since his first conviction. All
wait the decision of this court on the constitutional
question. Considering, therefore, the importance which
the instant case has assumed and to prevent multiplicity
of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu
Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271
U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78;
People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442,
444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911],
147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489;
Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil.,
304.) In Yu Cong Eng vs. Trinidad, supra, an analogous
situation confronted us. We said: "Inasmuch as the
property and personal rights of nearly twelve thousand
merchants are affected by these proceedings, and
inasmuch as Act No. 2972 is a new law not yet interpreted
by the courts, in the interest of the public welfare and for
the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that
we may decide the main issue. We have here an
extraordinary situation which calls for a relaxation of the
general rule." Our ruling on this point was sustained by
the Supreme Court of the United States. A more binding
authority in support of the view we have taken can not be
found.

We have reached the conclusion that the question

of the constitutionality of Act No. 4221 has been properly
raised. Now for the main inquiry: Is the Act
unconstitutional?

Under a doctrine peculiarly American, it is the office

and duty of the judiciary to enforce the Constitution. This
court, by clear implication from the provisions of section 2,
subsection 1, and section 10, of Article VIII of the
Constitution, may declare an act of the national legislature
invalid because in conflict with the fundamental lay. It will
not shirk from its sworn duty to enforce the Constitution.
And, in clear cases, it will not hesitate to give effect to the
supreme law by setting aside a statute in conflict
therewith. This is of the essence of judicial duty.

This court is not unmindful of the fundamental

criteria in cases of this nature that all reasonable doubts
should be resolved in favor of the constitutionality of a
statute. An act of the legislature approved by the
executive, is presumed to be within constitutional
limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the
legislature as well. "The question of the validity of every
statute is first determined by the legislative department of
the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1,
10; Case vs. Board of Health and Heiser [1913], 24 Phil.,
250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute
finally comes before the courts sustained by the sanction
of the executive. The members of the Legislature and the
Chief Executive have taken an oath to support the
Constitution and it must be presumed that they have been
true to this oath and that in enacting and sanctioning a
particular law they did not intend to violate the
Constitution. The courts cannot but cautiously exercise its
power to overturn the solemn declarations of two of the
three grand departments of the governments. (6 R.C.L., p.
101.) Then, there is that peculiar political philosophy
which bids the judiciary to reflect the wisdom of the
people as expressed through an elective Legislature and
an elective Chief Executive. It follows, therefore, that the
courts will not set aside a law as violative of the
Constitution except in a clear case. This is a proposition
too plain to require a citation of authorities.

One of the counsel for respondents, in the course of

his impassioned argument, called attention to the fact that
the President of the Philippines had already expressed his
opinion against the constitutionality of the Probation Act,
adverting that as to the Executive the resolution of this
question was a foregone conclusion. Counsel, however,
reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that
the President in his message dated September 1, 1937,
recommended to the National Assembly the immediate
repeal of the Probation Act (No. 4221); that this message
resulted in the approval of Bill No. 2417 of the Nationality
Assembly repealing the probation Act, subject to certain
conditions therein mentioned; but that said bill was vetoed
by the President on September 13, 1937, much against his
wish, "to have stricken out from the statute books of the
Commonwealth a law . . . unfair and very likely
unconstitutional." It is sufficient to observe in this
connection that, in vetoing the bill referred to, the
President exercised his constitutional prerogative. He may
express the reasons which he may deem proper for taking
such a step, but his reasons are not binding upon us in the
determination of actual controversies submitted for our
determination. Whether or not the Executive should
express or in any manner insinuate his opinion on a
matter encompassed within his broad constitutional power
of veto but which happens to be at the same time pending
determination in this court is a question of propriety for
him exclusively to decide or determine. Whatever opinion
is expressed by him under these circumstances, however,
cannot sway our judgment on way or another and prevent
us from taking what in our opinion is the proper course of
action to take in a given case. It if is ever necessary for us
to make any vehement affirmance during this formative
period of our political history, it is that we are independent
of the Executive no less than of the Legislative
department of our government — independent in the
performance of our functions, undeterred by any
consideration, free from politics, indifferent to popularity,
and unafraid of criticism in the accomplishment of our
sworn duty as we see it and as we understand it.

The constitutionality of Act No. 4221 is challenged

on three principal grounds: (1) That said Act encroaches
upon the pardoning power of the Executive; (2) that its
constitutes an undue delegation of legislative power and
(3) that it denies the equal protection of the laws.

1. Section 21 of the Act of Congress of August 29,

1916, commonly known as the Jones Law, in force at the
time of the approval of Act No. 4221, otherwise known as
the Probation Act, vests in the Governor-General of the
Philippines "the exclusive power to grant pardons and
reprieves and remit fines and forfeitures". This power is
now vested in the President of the Philippines. (Art. VII,
sec. 11, subsec. 6.) The provisions of the Jones Law and
the Constitution differ in some respects. The adjective
"exclusive" found in the Jones Law has been omitted from
the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of
the offense, either before or after conviction (Vide
Constitution of the United States, Art. II, sec. 2; In re
Lontok [1922], 43 Phil., 293). The Governor-General of the
Philippines was thus empowered, like the President of the
United States, to pardon a person before the facts of the
case were fully brought to light. The framers of our
Constitution thought this undesirable and, following most
of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So, too,
under the new Constitution, the pardoning power does not
extend to "cases of impeachment". This is also the rule
generally followed in the United States (Vide Constitution
of the United States, Art. II, sec. 2). The rule in England is
different. There, a royal pardon can not be pleaded in bar
of an impeachment; "but," says Blackstone, "after the
impeachment has been solemnly heard and determined, it
is not understood that the king's royal grace is further
restrained or abridged." (Vide, Ex parte Wells [1856], 18
How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872],
109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake
[1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason
for the distinction is obvious. In England, Judgment on
impeachment is not confined to mere "removal from office
and disqualification to hold and enjoy any office of honor,
trust, or profit under the Government" (Art. IX, sec. 4,
Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed.
The House of Lords, on a conviction may, by its sentence,
inflict capital punishment, perpetual banishment,
perpetual banishment, fine or imprisonment, depending
upon the gravity of the offense committed, together with
removal from office and incapacity to hold office. (Com.
vs. Lockwood, supra.) Our Constitution also makes specific
mention of "commutation" and of the power of the
executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem
proper. Amnesty may be granted by the President under
the Constitution but only with the concurrence of the
National Assembly. We need not dwell at length on the
significance of these fundamental changes. It is sufficient
for our purposes to state that the pardoning power has
remained essentially the same. The question is: Has the
pardoning power of the Chief Executive under the Jones
Law been impaired by the Probation Act?

As already stated, the Jones Law vests the

pardoning power exclusively in the Chief Executive. The
exercise of the power may not, therefore, be vested in
anyone else. ". . . The benign prerogative of mercy
reposed in the executive cannot be taken away nor
fettered by any legislative restrictions, nor can like power
be given by the legislature to any other officer or
authority. The coordinate departments of government
have nothing to do with the pardoning power, since no
person properly belonging to one of the departments can
exercise any powers appertaining to either of the others
except in cases expressly provided for by the
constitution." (20 R.C.L., pp., , and cases cited.) " . . .
where the pardoning power is conferred on the executive
without express or implied limitations, the grant is
exclusive, and the legislature can neither exercise such
power itself nor delegate it elsewhere, nor interfere with
or control the proper exercise thereof, . . ." (12 C.J., pp.
838, 839, and cases cited.) If Act No. 4221, then, confers
any pardoning power upon the courts it is for that reason
unconstitutional and void. But does it?

In the famous Killitts decision involving an

embezzlement case, the Supreme Court of the United
States ruled in 1916 that an order indefinitely suspending
sentenced was void. (Ex parte United States [1916], 242
U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after
an exhaustive review of the authorities, expressed the
opinion of the court that under the common law the power
of the court was limited to temporary suspension and that
the right to suspend sentenced absolutely and
permanently was vested in the executive branch of the
government and not in the judiciary. But, the right of
Congress to establish probation by statute was conceded.
Said the court through its Chief Justice: ". . . and so far as
the future is concerned, that is, the causing of the
imposition of penalties as fixed to be subject, by probation
legislation or such other means as the legislative mind
may devise, to such judicial discretion as may be
adequate to enable courts to meet by the exercise of an
enlarged but wise discretion the infinite variations which
may be presented to them for judgment, recourse must be
had Congress whose legislative power on the subject is in
the very nature of things adequately complete." (Quoted
in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This
decision led the National Probation Association and others
to agitate for the enactment by Congress of a federal
probation law. Such action was finally taken on March 4,
1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724).
This was followed by an appropriation to defray the
salaries and expenses of a certain number of probation
officers chosen by civil service. (Johnson, Probation for
Juveniles and Adults, p. 14.)
 In United States vs. Murray ([1925], 275 U.S., 347;
48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme
Court of the United States, through Chief Justice Taft, held
that when a person sentenced to imprisonment by a
district court has begun to serve his sentence, that court
has no power under the Probation Act of March 4, 1925 to
grant him probation even though the term at which
sentence was imposed had not yet expired. In this case of
Murray, the constitutionality of the probation Act was not
considered but was assumed. The court traced the history
of the Act and quoted from the report of the Committee on
the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 2
Session) the following statement:

Prior to the so-called Killitts case, rendered in

December, 1916, the district courts exercised a form of
probation either, by suspending sentence or by placing
the defendants under state probation officers or
volunteers. In this case, however (Ex parte United States,
242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup.
Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court
denied the right of the district courts to suspend
sentenced. In the same opinion the court pointed out the
necessity for action by Congress if the courts were to
exercise probation powers in the future . . .

Since this decision was rendered, two attempts

have been made to enact probation legislation. In 1917, a
bill was favorably reported by the Judiciary Committee and
passed the House. In 1920, the judiciary Committee again
favorably reported a probation bill to the House, but it was
never reached for definite action.

If this bill is enacted into law, it will bring the policy

of the Federal government with reference to its treatment
of those convicted of violations of its criminal laws in
harmony with that of the states of the Union. At the
present time every state has a probation law, and in all
but twelve states the law applies both to adult and
juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)
 The constitutionality of the federal probation law
has been sustained by inferior federal courts. In Riggs vs.
United States supra, the Circuit Court of Appeals of the
Fourth Circuit said:

Since the passage of the Probation Act of March 4,

1925, the questions under consideration have been
reviewed by the Circuit Court of Appeals of the Ninth
Circuit (7 F. [2d], 590), and the constitutionality of the act
fully sustained, and the same held in no manner to
encroach upon the pardoning power of the President. This
case will be found to contain an able and comprehensive
review of the law applicable here. It arose under the act
we have to consider, and to it and the authorities cited
therein special reference is made (Nix vs. James, 7 F. [2d],
590, 594), as is also to a decision of the Circuit Court of
Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d],
762), likewise construing the Probation Act.

We have seen that in 1916 the Supreme Court of

the United States; in plain and unequivocal language,
pointed to Congress as possessing the requisite power to
enact probation laws, that a federal probation law as
actually enacted in 1925, and that the constitutionality of
the Act has been assumed by the Supreme Court of the
United States in 1928 and consistently sustained by the
inferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine

Legislature, like the Congress of the United States, may
legally enact a probation law under its broad power to fix
the punishment of any and all penal offenses. This
conclusion is supported by other authorities. In Ex parte
Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151
Pac., 698, the court said: "It is clearly within the province
of the Legislature to denominate and define all classes of
crime, and to prescribe for each a minimum and maximum
punishment." And in State vs. Abbott ([1910], 87 S.C.,
466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B,
1189), the court said: "The legislative power to set
punishment for crime is very broad, and in the exercise of
this power the general assembly may confer on trial
judges, if it sees fit, the largest discretion as to the
sentence to be imposed, as to the beginning and end of
the punishment and whether it should be certain or
indeterminate or conditional." (Quoted in State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine
Legislature has defined all crimes and fixed the penalties
for their violation. Invariably, the legislature has
demonstrated the desire to vest in the courts —
particularly the trial courts — large discretion in imposing
the penalties which the law prescribes in particular cases.
It is believed that justice can best be served by vesting
this power in the courts, they being in a position to best
determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts
are not allowed to refrain from imposing a sentence
merely because, taking into consideration the degree of
malice and the injury caused by the offense, the penalty
provided by law is clearly excessive, the courts being
allowed in such case to submit to the Chief Executive,
through the Department of Justice, such statement as it
may deem proper (see art. 5, Revised Penal Code), in
cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime
and the law provides for a penalty composed of two
indivisible penalties, the courts may allow such
circumstances to offset one another in consideration of
their number and importance, and to apply the penalty
according to the result of such compensation. (Art. 63,
rule 4, Revised Penal Code; U.S. vs. Reguera and
Asuategui [1921], 41 Phil., 506.) Again, article 64,
paragraph 7, of the Revised Penal Code empowers the
courts to determine, within the limits of each periods, in
case the penalty prescribed by law contains three periods,
the extent of the evil produced by the crime. In the
imposition of fines, the courts are allowed to fix any
amount within the limits established by law, considering
not only the mitigating and aggravating circumstances,
but more particularly the wealth or means of the culprit.
(Art. 66, Revised Penal Code.) Article 68, paragraph 1, of
the same Code provides that "a discretionary penalty shall
be imposed" upon a person under fifteen but over nine
years of age, who has not acted without discernment, but
always lower by two degrees at least than that prescribed
by law for the crime which he has committed. Article 69 of
the same Code provides that in case of "incomplete self-
defense", i.e., when the crime committed is not wholly
excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal
liability in the several cases mentioned in article 11 and
12 of the Code, "the courts shall impose the penalty in the
period which may be deemed proper, in view of the
number and nature of the conditions of exemption present
or lacking." And, in case the commission of what are
known as "impossible" crimes, "the court, having in mind
the social danger and the degree of criminality shown by
the offender," shall impose upon him either arresto mayor
or a fine ranging from 200 to 500 pesos. (Art. 59, Revised
Penal Code.)

Under our Revised Penal Code, also, one-half of the

period of preventive imprisonment is deducted form the
entire term of imprisonment, except in certain cases
expressly mentioned (art. 29); the death penalty is not
imposed when the guilty person is more than seventy
years of age, or where upon appeal or revision of the case
by the Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the
imposition of the death penalty (art. 47, see also, sec.
133, Revised Administrative Code, as amended by
Commonwealth Act No. 3); the death sentence is not to be
inflicted upon a woman within the three years next
following the date of the sentence or while she is
pregnant, or upon any person over seventy years of age
(art. 83); and when a convict shall become insane or an
imbecile after final sentence has been pronounced, or
while he is serving his sentenced, the execution of said
sentence shall be suspended with regard to the personal
penalty during the period of such insanity or imbecility
(art. 79).

But the desire of the legislature to relax what might

result in the undue harshness of the penal laws is more
clearly demonstrated in various other enactments,
including the probation Act. There is the Indeterminate
Sentence Law enacted in 1933 as Act No. 4103 and
subsequently amended by Act No. 4225, establishing a
system of parole (secs. 5 to 100 and granting the courts
large discretion in imposing the penalties of the law.
Section 1 of the law as amended provides; "hereafter, in
imposing a prison sentence for an offenses punished by
the Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed
under the rules of the said Code, and to a minimum which
shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense
is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum
term of which shall not exceed the maximum fixed by said
law and the minimum shall not be less than the minimum
term prescribed by the same." Certain classes of convicts
are, by section 2 of the law, excluded from the operation
thereof. The Legislature has also enacted the Juvenile
Delinquency Law (Act No. 3203) which was subsequently
amended by Act No. 3559. Section 7 of the original Act
and section 1 of the amendatory Act have become article
80 of the Revised Penal Code, amended by Act No. 4117
of the Philippine Legislature and recently reamended by
Commonwealth Act No. 99 of the National Assembly. In
this Act is again manifested the intention of the legislature
to "humanize" the penal laws. It allows, in effect, the
modification in particular cases of the penalties prescribed
by law by permitting the suspension of the execution of
the judgment in the discretion of the trial court, after due
hearing and after investigation of the particular
circumstances of the offenses, the criminal record, if any,
of the convict, and his social history. The Legislature has
in reality decreed that in certain cases no punishment at
all shall be suffered by the convict as long as the
conditions of probation are faithfully observed. It this be
so, then, it cannot be said that the Probation Act comes in
conflict with the power of the Chief Executive to grant
pardons and reprieves, because, to use the language of
the Supreme Court of New Mexico, "the element of
punishment or the penalty for the commission of a wrong,
while to be declared by the courts as a judicial function
under and within the limits of law as announced by
legislative acts, concerns solely the procedure and
conduct of criminal causes, with which the executive can
have nothing to do." (Ex parte Bates, supra.) In Williams
vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court
upheld the constitutionality of the Georgia probation
statute against the contention that it attempted to
delegate to the courts the pardoning power lodged by the
constitution in the governor alone is vested with the power
to pardon after final sentence has been imposed by the
courts, the power of the courts to imposed any penalty
which may be from time to time prescribed by law and in
such manner as may be defined cannot be questioned."

We realize, of course, the conflict which the

American cases disclose. Some cases hold it unlawful for
the legislature to vest in the courts the power to suspend
the operation of a sentenced, by probation or otherwise,
as to do so would encroach upon the pardoning power of
the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A.,
356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim.,
Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43
Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22
Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041;
132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett
[1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St.
Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep.,
615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex parte
Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State
[1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep.,
175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921],
43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich.,
15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn.,
544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James

[1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook
[1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States
[1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926],
171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re
Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re
Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex
parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874;
People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425;
Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171;
Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370,
371; Williams vs. State [1926], 162 Ga., 327; 133 S. E.,
843; People vs. Heise [1913], 257 Ill., 443; 100 N. E.,
1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179;
23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me.,
522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich.,
557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn.,
529; State ex rel. Bottomnly vs. District Court [1925], 73
Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N.
C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel.
Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State
vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte
Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151
Pac., 698; People vs. ex rel. Forsyth vs. Court of Session
[1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15
Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn
[1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs.
Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn
[1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart
[1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568;
Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P.,
781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69;
State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.],
112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States
[1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn.,
100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn.,
100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim.
Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex.
Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72
Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State
[1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs.
State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127;
Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs.
Com. [1921], 131 Va., 802; 109 S.E., 460; State vs.
Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex
rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206
Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long
catena of authorities holding that the courts may be
legally authorized by the legislature to suspend sentence
by the establishment of a system of probation however
characterized. State ex rel. Tingstand vs. Starwich ([1922],
119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921
which provided for the suspension of the execution of a
sentence until otherwise ordered by the court, and
required that the convicted person be placed under the
charge of a parole or peace officer during the term of such
suspension, on such terms as the court may determine,
was held constitutional and as not giving the court a
power in violation of the constitutional provision vesting
the pardoning power in the chief executive of the state.
(Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac.,
831.)

Probation and pardon are not coterminous; nor are

they the same. They are actually district and different
from each other, both in origin and in nature. In People ex
rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288,
294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim.
Rep., 675), the Court of Appeals of New York said:

. . . The power to suspend sentence and the power

to grant reprieves and pardons, as understood when the
constitution was adopted, are totally distinct and different
in their nature. The former was always a part of the
judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply
postpones the judgment of the court temporarily or
indefinitely, but the conviction and liability following it,
and the civil disabilities, remain and become operative
when judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of the
offender. It releases the punishment, and blots out of
existence the guilt, so that in the eye of the law, the
offender is as innocent as if he had never committed the
offense. It removes the penalties and disabilities, and
restores him to all his civil rights. It makes him, as it were,
a new man, and gives him a new credit and capacity. (Ex
parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U.
S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519;
Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)

The framers of the federal and the state

constitutions were perfectly familiar with the principles
governing the power to grant pardons, and it was
conferred by these instruments upon the executive with
full knowledge of the law upon the subject, and the words
of the constitution were used to express the authority
formerly exercised by the English crown, or by its
representatives in the colonies. (Ex parte Wells, 59 U. S.,
18 How., 307; 15 Law. ed., 421.) As this power was
understood, it did not comprehend any part of the judicial
functions to suspend sentence, and it was never intended
that the authority to grant reprieves and pardons should
abrogate, or in any degree restrict, the exercise of that
power in regard to its own judgments, that criminal courts
has so long maintained. The two powers, so distinct and
different in their nature and character, were still left
separate and distinct, the one to be exercised by the
executive, and the other by the judicial department. We
therefore conclude that a statute which, in terms,
authorizes courts of criminal jurisdiction to suspend
sentence in certain cases after conviction, — a power
inherent in such courts at common law, which was
understood when the constitution was adopted to be an
ordinary judicial function, and which, ever since its
adoption, has been exercised of legislative power under
the constitution. It does not encroach, in any just sense,
upon the powers of the executive, as they have been
understood and practiced from the earliest times. (Quoted
with approval in Directors of Prisons vs. Judge of First
Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as

in pardon, a free man. He is not finally and completely
exonerated. He is not exempt from the entire punishment
which the law inflicts. Under the Probation Act, the
probationer's case is not terminated by the mere fact that
he is placed on probation. Section 4 of the Act provides
that the probation may be definitely terminated and the
probationer finally discharged from supervision only after
the period of probation shall have been terminated and
the probation officer shall have submitted a report, and
the court shall have found that the probationer has
complied with the conditions of probation. The
probationer, then, during the period of probation, remains
in legal custody — subject to the control of the probation
officer and of the court; and, he may be rearrested upon
the non-fulfillment of the conditions of probation and,
when rearrested, may be committed to prison to serve the
sentence originally imposed upon him. (Secs. 2, 3, 5 and
6, Act No. 4221.)

The probation described in the act is not pardon. It

is not complete liberty, and may be far from it. It is really
a new mode of punishment, to be applied by the judge in
a proper case, in substitution of the imprisonment and find
prescribed by the criminal laws. For this reason its
application is as purely a judicial act as any other
sentence carrying out the law deemed applicable to the
offense. The executive act of pardon, on the contrary, is
against the criminal law, which binds and directs the
judges, or rather is outside of and above it. There is thus
no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause.
(Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from

reprieve and from commutation of the sentence.
Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L.
R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most
strongly by the petitioners as authority in support of their
contention that the power to grant pardons and reprieves,
having been vested exclusively upon the Chief Executive
by the Jones Law, may not be conferred by the legislature
upon the courts by means of probation law authorizing the
indefinite judicial suspension of sentence. We have
examined that case and found that although the Court of
Criminal Appeals of Texas held that the probation statute
of the state in terms conferred on the district courts the
power to grant pardons to persons convicted of crime, it
also distinguished between suspensions sentence on the
one hand, and reprieve and commutation of sentence on
the other. Said the court, through Harper, J.:

That the power to suspend the sentence does not

conflict with the power of the Governor to grant reprieves
is settled by the decisions of the various courts; it being
held that the distinction between a "reprieve" and a
suspension of sentence is that a reprieve postpones the
execution of the sentence to a day certain, whereas a
suspension is for an indefinite time. (Carnal vs. People, 1
Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N.
E., 883), and cases cited in 7 Words & Phrases, pp. 6115,
6116. This law cannot be hold in conflict with the power
confiding in the Governor to grant commutations of
punishment, for a commutations is not but to change the
punishment assessed to a less punishment.

In State ex rel. Bottomnly vs. District Court ([1925],

73 Mont., 541; 237 Pac., 525), the Supreme Court of
Montana had under consideration the validity of the adult
probation law of the state enacted in 1913, now found in
sections 12078-12086, Revised Codes of 1921. The court
held the law valid as not impinging upon the pardoning
power of the executive. In a unanimous decision penned
by Justice Holloway, the court said:

. . . . the term "pardon", "commutation", and

"respite" each had a well understood meaning at the time
our Constitution was adopted, and no one of them was
intended to comprehend the suspension of the execution
of the judgment as that phrase is employed in sections
12078-12086. A "pardon" is an act of grace, proceeding
from the power intrusted with the execution of the laws
which exempts the individual on whom it is bestowed from
the punishment the law inflicts for a crime he has
committed (United States vs. Wilson, 7 Pet., 150; 8 Law.
ed., 640); It is a remission of guilt (State vs. Lewis, 111
La., 693; 35 So., 816), a forgiveness of the offense (Cook
vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell,
73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a
remission of a part of the punishment; a substitution of a
less penalty for the one originally imposed (Lee vs.
Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs.
Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve"
or "respite" is the withholding of the sentence for an
interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker,
Cr. R. [N. Y.], 272), a temporary suspension of execution
(Butler vs. State, 97 Ind., 373).
 Few adjudicated cases are to be found in which the
validity of a statute similar to our section 12078 has been
determined; but the same objections have been urged
against parole statutes which vest the power to parole in
persons other than those to whom the power of pardon is
granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in
the notes to Woods vs. State (130 Tenn., 100; 169 S.
W.,558, reported in L. R. A., 1915F, 531), will disclose.
(See, also, 20 R. C. L., 524.)

We conclude that the Probation Act does not conflict

with the pardoning power of the Executive. The pardoning
power, in respect to those serving their probationary
sentences, remains as full and complete as if the
Probation Law had never been enacted. The President
may yet pardon the probationer and thus place it beyond
the power of the court to order his rearrest and
imprisonment. (Riggs vs. United States [1926], 14 F. [2d],
5, 7.)

2. But while the Probation Law does not encroach

upon the pardoning power of the executive and is not for
that reason void, does section 11 thereof constitute, as
contended, an undue delegation of legislative power?

Under the constitutional system, the powers of

government are distributed among three coordinate and
substantially independent organs: the legislative, the
executive and the judicial. Each of these departments of
the government derives its authority from the Constitution
which, in turn, is the highest expression of popular will.
Each has exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own sphere.

The power to make laws — the legislative power —

is vested in a bicameral Legislature by the Jones Law (sec.
12) and in a unicamiral National Assembly by the
Constitution (Act. VI, sec. 1, Constitution of the
Philippines). The Philippine Legislature or the National
Assembly may not escape its duties and responsibilities by
delegating that power to any other body or authority. Any
attempt to abdicate the power is unconstitutional and
void, on the principle that potestas delegata non delegare
potest. This principle is said to have originated with the
glossators, was introduced into English law through a
misreading of Bracton, there developed as a principle of
agency, was established by Lord Coke in the English public
law in decisions forbidding the delegation of judicial
power, and found its way into America as an enlightened
principle of free government. It has since become an
accepted corollary of the principle of separation of powers.
(5 Encyc. of the Social Sciences, p. 66.) The classic
statement of the rule is that of Locke, namely: "The
legislative neither must nor can transfer the power of
making laws to anybody else, or place it anywhere but
where the people have." (Locke on Civil Government, sec.
142.) Judge Cooley enunciates the doctrine in the
following oft-quoted language: "One of the settled maxims
in constitutional law is, that the power conferred upon the
legislature to make laws cannot be delegated by that
department to any other body or authority. Where the
sovereign power of the state has located the authority,
there it must remain; and by the constitutional agency
alone the laws must be made until the Constitution itself is
charged. The power to whose judgment, wisdom, and
patriotism this high prerogative has been intrusted cannot
relieve itself of the responsibilities by choosing other
agencies upon which the power shall be devolved, nor can
it substitute the judgment, wisdom, and patriotism of any
other body for those to which alone the people have seen
fit to confide this sovereign trust." (Cooley on
Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted
with approval in U. S. vs. Barrias [1908], 11 Phil., 327.)
This court posits the doctrine "on the ethical principle that
such a delegated power constitutes not only a right but a
duty to be performed by the delegate by the
instrumentality of his own judgment acting immediately
upon the matter of legislation and not through the
intervening mind of another. (U. S. vs. Barrias, supra, at p.
330.)

The rule, however, which forbids the delegation of

legislative power is not absolute and inflexible. It admits of
exceptions. An exceptions sanctioned by immemorial
practice permits the central legislative body to delegate
legislative powers to local authorities. (Rubi vs. Provincial
Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria
[1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889],
129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256;
State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal
principle of our system of government, that local affairs
shall be managed by local authorities, and general affairs
by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be
delegated, the creation of the municipalities exercising
local self government has never been held to trench upon
that rule. Such legislation is not regarded as a transfer of
general legislative power, but rather as the grant of the
authority to prescribed local regulations, according to
immemorial practice, subject of course to the interposition
of the superior in cases of necessity." (Stoutenburgh vs.
Hennick, supra.) On quite the same principle, Congress is
powered to delegate legislative power to such agencies in
the territories of the United States as it may select. A
territory stands in the same relation to Congress as a
municipality or city to the state government. (United
States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct.
Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs.
United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808;
49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also
sustained the delegation of legislative power to the people
at large. Some authorities maintain that this may not be
done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing
People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442;
Ann. Cas., 1914C, 616). However, the question of whether
or not a state has ceased to be republican in form because
of its adoption of the initiative and referendum has been
held not to be a judicial but a political question (Pacific
States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56
Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the
constitutionality of such laws has been looked upon with
favor by certain progressive courts, the sting of the
decisions of the more conservative courts has been pretty
well drawn. (Opinions of the Justices [1894], 160 Mass.,
586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland
[1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L.
R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon,
supra.) Doubtless, also, legislative power may be
delegated by the Constitution itself. Section 14, paragraph
2, of article VI of the Constitution of the Philippines
provides that "The National Assembly may by law
authorize the President, subject to such limitations and
restrictions as it may impose, to fix within specified limits,
tariff rates, import or export quotas, and tonnage and
wharfage dues." And section 16 of the same article of the
Constitution provides that "In times of war or other
national emergency, the National Assembly may by law
authorize the President, for a limited period and subject to
such restrictions as it may prescribed, to promulgate rules
and regulations to carry out a declared national policy." It
is beyond the scope of this decision to determine whether
or not, in the absence of the foregoing constitutional
provisions, the President could be authorized to exercise
the powers thereby vested in him. Upon the other hand,
whatever doubt may have existed has been removed by
the Constitution itself.

The case before us does not fall under any of the

exceptions hereinabove mentioned.

The challenged section of Act No. 4221 in section 11

which reads as follows:

This Act shall apply only in those provinces in which the

respective provincial boards have provided for the salary
of a probation officer at rates not lower than those now
provided for provincial fiscals. Said probation officer shall
be appointed by the Secretary of Justice and shall be
subject to the direction of the Probation Office. (Emphasis
ours.)

In testing whether a statute constitute an undue

delegation of legislative power or not, it is usual to inquire
whether the statute was complete in all its terms and
provisions when it left the hands of the legislature so that
nothing was left to the judgment of any other appointee or
delegate of the legislature. (6 R. C. L., p. 165.) In the
United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this
court adhered to the foregoing rule when it held an act of
the legislature void in so far as it undertook to authorize
the Governor-General, in his discretion, to issue a
proclamation fixing the price of rice and to make the sale
of it in violation of the proclamation a crime. (See and cf.
Compañia General de Tabacos vs. Board of Public Utility
Commissioners [1916], 34 Phil., 136.) The general rule,
however, is limited by another rule that to a certain extent
matters of detail may be left to be filled in by rules and
regulations to be adopted or promulgated by executive
officers and administrative boards. (6 R. C. L., pp. 177-
179.)

For the purpose of Probation Act, the provincial

boards may be regarded as administrative bodies
endowed with power to determine when the Act should
take effect in their respective provinces. They are the
agents or delegates of the legislature in this respect. The
rules governing delegation of legislative power to
administrative and executive officers are applicable or are
at least indicative of the rule which should be here
adopted. An examination of a variety of cases on
delegation of power to administrative bodies will show
that the ratio decidendi is at variance but, it can be
broadly asserted that the rationale revolves around the
presence or absence of a standard or rule of action — or
the sufficiency thereof — in the statute, to aid the
delegate in exercising the granted discretion. In some
cases, it is held that the standard is sufficient; in others
that is insufficient; and in still others that it is entirely
lacking. As a rule, an act of the legislature is incomplete
and hence invalid if it does not lay down any rule or
definite standard by which the administrative officer or
board may be guided in the exercise of the discretionary
powers delegated to it. (See Schecter vs. United States
[1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep.,
837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co.
[1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500
and cases cited. See also R. C. L., title "Constitutional
Law", sec 174.) In the case at bar, what rules are to guide
the provincial boards in the exercise of their discretionary
power to determine whether or not the Probation Act shall
apply in their respective provinces? What standards are
fixed by the Act? We do not find any and none has been
pointed to us by the respondents. The probation Act does
not, by the force of any of its provisions, fix and impose
upon the provincial boards any standard or guide in the
exercise of their discretionary power. What is granted, if
we may use the language of Justice Cardozo in the recent
case of Schecter, supra, is a "roving commission" which
enables the provincial boards to exercise arbitrary
discretion. By section 11 if the Act, the legislature does
not seemingly on its own authority extend the benefits of
the Probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to
determine. In other words, the provincial boards of the
various provinces are to determine for themselves,
whether the Probation Law shall apply to their provinces
or not at all. The applicability and application of the
Probation Act are entirely placed in the hands of the
provincial boards. If the provincial board does not wish to
have the Act applied in its province, all that it has to do is
to decline to appropriate the needed amount for the salary
of a probation officer. The plain language of the Act is not
susceptible of any other interpretation. This, to our minds,
is a virtual surrender of legislative power to the provincial
boards.

"The true distinction", says Judge Ranney, "is

between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and
conferring an authority or discretion as to its execution, to
be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be
made." (Cincinnati, W. & Z. R. Co. vs. Clinton County
Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on
Statutory Construction, sec 68.) To the same effect are the
decision of this court in Municipality of Cardona vs.
Municipality of Binangonan ([1917], 36 Phil., 547); Rubi
vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and
Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of
these cases, this court sustained the validity of the law
conferring upon the Governor-General authority to adjust
provincial and municipal boundaries. In the second case,
this court held it lawful for the legislature to direct non-
Christian inhabitants to take up their habitation on
unoccupied lands to be selected by the provincial
governor and approved by the provincial board. In the
third case, it was held proper for the legislature to vest in
the Governor-General authority to suspend or not, at his
discretion, the prohibition of the importation of the foreign
cattle, such prohibition to be raised "if the conditions of
the country make this advisable or if deceased among
foreign cattle has ceased to be a menace to the
agriculture and livestock of the lands."

It should be observed that in the case at bar we are

not concerned with the simple transference of details of
execution or the promulgation by executive or
administrative officials of rules and regulations to carry
into effect the provisions of a law. If we were, recurrence
to our own decisions would be sufficient. (U. S. vs. Barrias
[1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu
Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs.
Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660.)

It is connected, however, that a legislative act may

be made to the effect as law after it leaves the hands of
the legislature. It is true that laws may be made effective
on certain contingencies, as by proclamation of the
executive or the adoption by the people of a particular
community (6 R. C. L., 116, 170-172; Cooley,
Constitutional Limitations, 8th ed., Vol. I, p. 227). In
Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed.,
253), the Supreme Court of the United State ruled that the
legislature may delegate a power not legislative which it
may itself rightfully exercise.(Vide, also, Dowling vs.
Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31
L. R. A., 112.) The power to ascertain facts is such a power
which may be delegated. There is nothing essentially
legislative in ascertaining the existence of facts or
conditions as the basis of the taking into effect of a law.
That is a mental process common to all branches of the
government. (Dowling vs. Lancashire Ins. Co., supra; In re
Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W.,
1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120;
108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12
Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the
apparent tendency, however, to relax the rule prohibiting
delegation of legislative authority on account of the
complexity arising from social and economic forces at
work in this modern industrial age (Pfiffner, Public
Administration [1936] ch. XX; Laski, "The Mother of
Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp.
569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly
Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the
orthodox pronouncement of Judge Cooley in his work on
Constitutional Limitations finds restatement in Prof.
Willoughby's treatise on the Constitution of the United
States in the following language — speaking of declaration
of legislative power to administrative agencies: "The
principle which permits the legislature to provide that the
administrative agent may determine when the
circumstances are such as require the application of a law
is defended upon the ground that at the time this
authority is granted, the rule of public policy, which is the
essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to
do, determines that, under given circumstances, certain
executive or administrative action is to be taken, and that,
under other circumstances, different of no action at all is
to be taken. What is thus left to the administrative official
is not the legislative determination of what public policy
demands, but simply the ascertainment of what the facts
of the case require to be done according to the terms of
the law by which he is governed." (Willoughby on the
Constitution of the United States, 2nd ed., Vol. II, p. 1637.)
In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3
Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said:
"The efficiency of an Act as a declaration of legislative will
must, of course, come from Congress, but the
ascertainment of the contingency upon which the Act shall
take effect may be left to such agencies as it may
designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343,
258.) The legislature, then may provide that a
contingencies leaving to some other person or body the
power to determine when the specified contingencies has
arisen. But, in the case at bar, the legislature has not
made the operation of the Prohibition Act contingent upon
specified facts or conditions to be ascertained by the
provincial board. It leaves, as we have already said, the
entire operation or non-operation of the law upon the
provincial board. the discretion vested is arbitrary because
it is absolute and unlimited. A provincial board need not
investigate conditions or find any fact, or await the
happening of any specified contingency. It is bound by no
rule, — limited by no principle of expendiency announced
by the legislature. It may take into consideration certain
facts or conditions; and, again, it may not. It may have
any purpose or no purpose at all. It need not give any
reason whatsoever for refusing or failing to appropriate
any funds for the salary of a probation officer. This is a
matter which rest entirely at its pleasure. The fact that at
some future time — we cannot say when — the provincial
boards may appropriate funds for the salaries of probation
officers and thus put the law into operation in the various
provinces will not save the statute. The time of its taking
into effect, we reiterate, would yet be based solely upon
the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the
ascertainment of certain facts or conditions by a person or
body other than legislature itself.

The various provincial boards are, in practical effect,

endowed with the power of suspending the operation of
the Probation Law in their respective provinces. In some
jurisdiction, constitutions provided that laws may be
suspended only by the legislature or by its authority. Thus,
section 28, article I of the Constitution of Texas provides
that "No power of suspending laws in this state shall be
exercised except by the legislature"; and section 26,
article I of the Constitution of Indiana provides "That the
operation of the laws shall never be suspended, except by
authority of the General Assembly." Yet, even provisions
of this sort do not confer absolute power of suspension
upon the legislature. While it may be undoubted that the
legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to
certain individuals only, leaving the law to be enjoyed by
others. The suspension must be general, and cannot be
made for individual cases or for particular localities. In
Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174,
177, 178), it was said:

By the twentieth article of the declaration of rights

in the constitution of this commonwealth, it is declared
that the power of suspending the laws, or the execution of
the laws, ought never to be exercised but by the
legislature, or by authority derived from it, to be exercised
in such particular cases only as the legislature shall
expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna Charta
of England, and from the bill of rights passed in the reign
of William and Mary. The bill of rights contains an
enumeration of the oppressive acts of James II, tending to
subvert and extirpate the protestant religion, and the laws
and liberties of the kingdom; and the first of them is the
assuming and exercising a power of dispensing with and
suspending the laws, and the execution of the laws
without consent of parliament. The first article in the claim
or declaration of rights contained in the statute is, that the
exercise of such power, by legal authority without consent
of parliament, is illegal. In the tenth section of the same
statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or part
thereof, should be allowed; but the same should be held
void and of no effect, except a dispensation be allowed of
in such statute." There is an implied reservation of
authority in the parliament to exercise the power here
mentioned; because, according to the theory of the
English Constitution, "that absolute despotic power, which
must in all governments reside somewhere," is intrusted
to the parliament: 1 Bl. Com., 160.

The principles of our government are widely

different in this particular. Here the sovereign and
absolute power resides in the people; and the legislature
can only exercise what is delegated to them according to
the constitution. It is obvious that the exercise of the
power in question would be equally oppressive to the
subject, and subversive of his right to protection,
"according to standing laws," whether exercised by one
man or by a number of men. It cannot be supposed that
the people when adopting this general principle from the
English bill of rights and inserting it in our constitution,
intended to bestow by implication on the general court
one of the most odious and oppressive prerogatives of the
ancient kings of England. It is manifestly contrary to the
first principles of civil liberty and natural justice, and to
the spirit of our constitution and laws, that any one citizen
should enjoy privileges and advantages which are denied
to all others under like circumstances; or that ant one
should be subject to losses, damages, suits, or actions
from which all others under like circumstances are
exempted.

To illustrate the principle: A section of a statute

relative to dogs made the owner of any dog liable to the
owner of domestic animals wounded by it for the damages
without proving a knowledge of it vicious disposition. By a
provision of the act, power was given to the board of
supervisors to determine whether or not during the
current year their county should be governed by the
provisions of the act of which that section constituted a
part. It was held that the legislature could not confer that
power. The court observed that it could no more confer
such a power than to authorize the board of supervisors of
a county to abolish in such county the days of grace on
commercial paper, or to suspend the statute of limitations.
(Slinger vs. Henneman [1875], 38 Wis., 504.) A similar
statute in Missouri was held void for the same reason in
State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In
that case a general statute formulating a road system
contained a provision that "if the county court of any
county should be of opinion that the provisions of the act
should not be enforced, they might, in their discretion,
suspend the operation of the same for any specified
length of time, and thereupon the act should become
inoperative in such county for the period specified in such
order; and thereupon order the roads to be opened and
kept in good repair, under the laws theretofore in force."
Said the court: ". . . this act, by its own provisions, repeals
the inconsistent provisions of a former act, and yet it is
left to the county court to say which act shall be enforce in
their county. The act does not submit the question to the
county court as an original question, to be decided by that
tribunal, whether the act shall commence its operation
within the county; but it became by its own terms a law in
every county not excepted by name in the act. It did not,
then, require the county court to do any act in order to
give it effect. But being the law in the county, and having
by its provisions superseded and abrogated the
inconsistent provisions of previous laws, the county court
is . . . empowered, to suspend this act and revive the
repealed provisions of the former act. When the question
is before the county court for that tribunal to determine
which law shall be in force, it is urge before us that the
power then to be exercised by the court is strictly
legislative power, which under our constitution, cannot be
delegated to that tribunal or to any other body of men in
the state. In the present case, the question is not
presented in the abstract; for the county court of Saline
county, after the act had been for several months in force
in that county, did by order suspend its operation; and
during that suspension the offense was committed which
is the subject of the present indictment . . . ." (See Mitchell
vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular

locality different from those applicable to other localities
and, while recognizing the force of the principle
hereinabove expressed, courts in may jurisdiction have
sustained the constitutionality of the submission of option
laws to the vote of the people. (6 R.C.L., p. 171.) But
option laws thus sustained treat of subjects purely local in
character which should receive different treatment in
different localities placed under different circumstances.
"They relate to subjects which, like the retailing of
intoxicating drinks, or the running at large of cattle in the
highways, may be differently regarded in different
localities, and they are sustained on what seems to us the
impregnable ground, that the subject, though not
embraced within the ordinary powers of municipalities to
make by-laws and ordinances, is nevertheless within the
class of public regulations, in respect to which it is proper
that the local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that, while
we do not deny the right of local self-government and the
propriety of leaving matters of purely local concern in the
hands of local authorities or for the people of small
communities to pass upon, we believe that in matters of
general of general legislation like that which treats of
criminals in general, and as regards the general subject of
probation, discretion may not be vested in a manner so
unqualified and absolute as provided in Act No. 4221.
True, the statute does not expressly state that the
provincial boards may suspend the operation of the
Probation Act in particular provinces but, considering that,
in being vested with the authority to appropriate or not
the necessary funds for the salaries of probation officers,
they thereby are given absolute discretion to determine
whether or not the law should take effect or operate in
their respective provinces, the provincial boards are in
reality empowered by the legislature to suspend the
operation of the Probation Act in particular provinces, the
Act to be held in abeyance until the provincial boards
should decide otherwise by appropriating the necessary
funds. The validity of a law is not tested by what has been
done but by what may be done under its provisions.
(Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922],
43 Phil., 259; 12 C. J., p. 786.)

It in conceded that a great deal of latitude should be

granted to the legislature not only in the expression of
what may be termed legislative policy but in the
elaboration and execution thereof. "Without this power,
legislation would become oppressive and yet imbecile."
(People vs. Reynolds, 5 Gilman, 1.) It has been said that
popular government lives because of the inexhaustible
reservoir of power behind it. It is unquestionable that the
mass of powers of government is vested in the
representatives of the people and that these
representatives are no further restrained under our
system than by the express language of the instrument
imposing the restraint, or by particular provisions which by
clear intendment, have that effect. (Angara vs. Electoral
Commission [1936], 35 Off. Ga., 23; Schneckenburger vs.
Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne
in mind that a constitution is both a grant and a limitation
of power and one of these time-honored limitations is that,
subject to certain exceptions, legislative power shall not
be delegated.

We conclude that section 11 of Act No. 4221

constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for
this reason, unconstitutional and void.

3. It is also contended that the Probation Act

violates the provisions of our Bill of Rights which prohibits
the denial to any person of the equal protection of the
laws (Act. III, sec. 1 subsec. 1. Constitution of the
Philippines.)

This basic individual right sheltered by the

Constitution is a restraint on all the tree grand
departments of our government and on the subordinate
instrumentalities and subdivision thereof, and on many
constitutional power, like the police power, taxation and
eminent domain. The equal protection of laws,
sententiously observes the Supreme Court of the United
States, "is a pledge of the protection of equal laws." (Yick
Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6
Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S.,
510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course,
what may be regarded as a denial of the equal protection
of the laws in a question not always easily determined. No
rule that will cover every case can be formulated.
(Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540;
22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others in
prohibited. But classification on a reasonable basis, and
nor made arbitrarily or capriciously, is permitted. (Finely
vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32
Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897],
165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255;
Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based
on substantial distinctions which make real differences; it
must be germane to the purposes of the law; it must not
be limited to existing conditions only, and must apply
equally to each member of the class. (Borgnis vs. Falk. Co.
[1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A.,
649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn.,
540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic
Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31
Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore &
M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct.
Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene
[1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed.,
536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U.
S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality

may be said to flow from the unwarranted delegation of
legislative power, although perhaps this is not necessarily
the result in every case. Adopting the example given by
one of the counsel for the petitioners in the course of his
oral argument, one province may appropriate the
necessary fund to defray the salary of a probation officer,
while another province may refuse or fail to do so. In such
a case, the Probation Act would be in operation in the
former province but not in the latter. This means that a
person otherwise coming within the purview of the law
would be liable to enjoy the benefits of probation in one
province while another person similarly situated in another
province would be denied those same benefits. This is
obnoxious discrimination. Contrariwise, it is also possible
for all the provincial boards to appropriate the necessary
funds for the salaries of the probation officers in their
respective provinces, in which case no inequality would
result for the obvious reason that probation would be in
operation in each and every province by the affirmative
action of appropriation by all the provincial boards. On
that hypothesis, every person coming within the purview
of the Probation Act would be entitled to avail of the
benefits of the Act. Neither will there be any resulting
inequality if no province, through its provincial board,
should appropriate any amount for the salary of the
probation officer — which is the situation now — and, also,
if we accept the contention that, for the purpose of the
Probation Act, the City of Manila should be considered as a
province and that the municipal board of said city has not
made any appropriation for the salary of the probation
officer. These different situations suggested show, indeed,
that while inequality may result in the application of the
law and in the conferment of the benefits therein
provided, inequality is not in all cases the necessary
result. But whatever may be the case, it is clear that in
section 11 of the Probation Act creates a situation in which
discrimination and inequality are permitted or allowed.
There are, to be sure, abundant authorities requiring
actual denial of the equal protection of the law before
court should assume the task of setting aside a law
vulnerable on that score, but premises and circumstances
considered, we are of the opinion that section 11 of Act
No. 4221 permits of the denial of the equal protection of
the law and is on that account bad. We see no difference
between a law which permits of such denial. A law may
appear to be fair on its face and impartial in appearance,
yet, if it permits of unjust and illegal discrimination, it is
within the constitutional prohibitions. (By analogy, Chy
Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed.,
550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law.
ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law.
ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26
Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S.,
703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U.
S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897],
170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012;
Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct.
Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield
[1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed.,
1154.) In other words, statutes may be adjudged
unconstitutional because of their effect in operation
(General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup.
Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat.
Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D,
22). If the law has the effect of denying the equal
protection of the law it is unconstitutional. (6 R. C. L. p.
372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18;
27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs.
Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386;
State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R.,
948; 19 L. R. A., 858.) Under section 11 of the Probation
Act, not only may said Act be in force in one or several
provinces and not be in force in other provinces, but one
province may appropriate for the salary of the probation
officer of a given year — and have probation during that
year — and thereafter decline to make further
appropriation, and have no probation is subsequent years.
While this situation goes rather to the abuse of discretion
which delegation implies, it is here indicated to show that
the Probation Act sanctions a situation which is intolerable
in a government of laws, and to prove how easy it is,
under the Act, to make the guaranty of the equality clause
but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs.
Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup.
Ct. Rep., 255.)
lawph!1.net

Great reliance is placed by counsel for the

respondents on the case of Ocampo vs. United States
([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the
Supreme Court of the United States affirmed the decision
of this court (18 Phil., 1) by declining to uphold the
contention that there was a denial of the equal protection
of the laws because, as held in Missouri vs. Lewis
(Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25
Law. ed., 991), the guaranty of the equality clause does
not require territorial uniformity. It should be observed,
however, that this case concerns the right to preliminary
investigations in criminal cases originally granted by
General Orders No. 58. No question of legislative authority
was involved and the alleged denial of the equal
protection of the laws was the result of the subsequent
enactment of Act No. 612, amending the charter of the
City of Manila (Act No. 813) and providing in section 2
thereof that "in cases triable only in the court of first
instance of the City of Manila, the defendant . . . shall not
be entitled as of right to a preliminary examination in any
case where the prosecuting attorney, after a due
investigation of the facts . . . shall have presented an
information against him in proper form . . . ." Upon the
other hand, an analysis of the arguments and the decision
indicates that the investigation by the prosecuting
attorney — although not in the form had in the provinces
— was considered a reasonable substitute for the City of
Manila, considering the peculiar conditions of the city as
found and taken into account by the legislature itself.

Reliance is also placed on the case of Missouri vs.

Lewis, supra. That case has reference to a situation where
the constitution of Missouri permits appeals to the
Supreme Court of the state from final judgments of any
circuit court, except those in certain counties for which
counties the constitution establishes a separate court of
appeals called St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and
it is the constitution that makes the apportionment of
territorial jurisdiction.

We are of the opinion that section 11 of the

Probation Act is unconstitutional and void because it is
also repugnant to equal-protection clause of our
Constitution.

Section 11 of the Probation Act being

unconstitutional and void for the reasons already stated,
the next inquiry is whether or not the entire Act should be
avoided.

In seeking the legislative intent, the presumption is

against any mutilation of a statute, and the courts will
resort to elimination only where an unconstitutional
provision is interjected into a statute otherwise valid, and
is so independent and separable that its removal will leave
the constitutional features and purposes of the act
substantially unaffected by the process. (Riccio vs.
Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl.,
1109, quoted in Williams vs. Standard Oil Co. [1929], 278
U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep.,
115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25
Phil., 44, 47), this court stated the well-established rule
concerning partial invalidity of statutes in the following
language:

. . . where part of the a statute is void, as repugnant

to the Organic Law, while another part is valid, the valid
portion, if separable from the valid, may stand and be
enforced. But in order to do this, the valid portion must be
in so far independent of the invalid portion that it is fair to
presume that the Legislative would have enacted it by
itself if they had supposed that they could not
constitutionally enact the other. (Mutual Loan Co. vs.
Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446;
Supervisors of Holmes Co. vs. Black Creek Drainage
District, 99 Miss., 739; 55 Sou., 963.) Enough must remain
to make a complete, intelligible, and valid statute, which
carries out the legislative intent. (Pearson vs. Bass. 132
Ga., 117; 63 S. E., 798.) The void provisions must be
eliminated without causing results affecting the main
purpose of the Act, in a manner contrary to the intention
of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617,
642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51
Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer
Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240
Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State
vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language
used in the invalid part of a statute can have no legal
force or efficacy for any purpose whatever, and what
remains must express the legislative will, independently of
the void part, since the court has no power to legislate.
(State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N.
S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil.,
759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158
U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep.,
912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes

the Probation Act applicable only in those provinces in
which the respective provincial boards provided for the
salaries of probation officers were inoperative on
constitutional grounds, the remainder of the Act would still
be valid and may be enforced. We should be inclined to
accept the suggestions but for the fact that said section is,
in our opinion, is inseparably linked with the other portions
of the Act that with the elimination of the section what
would be left is the bare idealism of the system, devoid of
any practical benefit to a large number of people who may
be deserving of the intended beneficial result of that
system. The clear policy of the law, as may be gleaned
from a careful examination of the whole context, is to
make the application of the system dependent entirely
upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation
officers at rates not lower than those provided for
provincial fiscals. Without such action on the part of the
various boards, no probation officers would be appointed
by the Secretary of Justice to act in the provinces. The
Philippines is divided or subdivided into provinces and it
needs no argument to show that if not one of the
provinces — and this is the actual situation now —
appropriate the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be
illusory. There can be no probation without a probation
officer. Neither can there be a probation officer without
the probation system.

Section 2 of the Acts provides that the probation

officer shall supervise and visit the probationer. Every
probation officer is given, as to the person placed in
probation under his care, the powers of the police officer.
It is the duty of the probation officer to see that the
conditions which are imposed by the court upon the
probationer under his care are complied with. Among
those conditions, the following are enumerated in section
3 of the Act:

That the probationer (a) shall indulge in no injurious

or vicious habits;

(b) Shall avoid places or persons of disreputable or

harmful character;

(c) Shall report to the probation officer as directed by the

court or probation officers;

(d) Shall permit the probation officer to visit him at

reasonable times at his place of abode or elsewhere;

(e) Shall truthfully answer any reasonable inquiries on the

part of the probation officer concerning his conduct or
condition; "(f) Shall endeavor to be employed regularly;
"(g) Shall remain or reside within a specified place or
locality;
(f) Shall make reparation or restitution to the aggrieved
parties for actual damages or losses caused by his
offense;

(g) Shall comply with such orders as the court may from
time to time make; and

(h) Shall refrain from violating any law, statute, ordinance,

or any by-law or regulation, promulgated in accordance
with law.

The court is required to notify the probation officer

in writing of the period and terms of probation. Under
section 4, it is only after the period of probation, the
submission of a report of the probation officer and
appropriate finding of the court that the probationer has
complied with the conditions of probation that probation
may be definitely terminated and the probationer finally
discharged from supervision. Under section 5, if the court
finds that there is non-compliance with said conditions, as
reported by the probation officer, it may issue a warrant
for the arrest of the probationer and said probationer may
be committed with or without bail. Upon arraignment and
after an opportunity to be heard, the court may revoke,
continue or modify the probation, and if revoked, the court
shall order the execution of the sentence originally
imposed. Section 6 prescribes the duties of probation
officers: "It shall be the duty of every probation officer to
furnish to all persons placed on probation under his
supervision a statement of the period and conditions of
their probation, and to instruct them concerning the same;
to keep informed concerning their conduct and condition;
to aid and encourage them by friendly advice and
admonition, and by such other measures, not inconsistent
with the conditions imposed by court as may seem most
suitable, to bring about improvement in their conduct and
condition; to report in writing to the court having
jurisdiction over said probationers at least once every two
months concerning their conduct and condition; to keep
records of their work; make such report as are necessary
for the information of the Secretary of Justice and as the
latter may require; and to perform such other duties as
are consistent with the functions of the probation officer
and as the court or judge may direct. The probation
officers provided for in this Act may act as parole officers
for any penal or reformatory institution for adults when so
requested by the authorities thereof, and, when
designated by the Secretary of Justice shall act as parole
officer of persons released on parole under Act Number
Forty-one Hundred and Three, without additional
compensation."

It is argued, however, that even without section 11

probation officers maybe appointed in the provinces under
section 10 of Act which provides as follows:

There is hereby created in the Department of Justice

and subject to its supervision and control, a Probation
Office under the direction of a Chief Probation Officer to be
appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four
eight hundred pesos per annum. To carry out this Act
there is hereby appropriated out of any funds in the
Insular Treasury not otherwise appropriated, the sum of
fifty thousand pesos to be disbursed by the Secretary of
Justice, who is hereby authorized to appoint probation
officers and the administrative personnel of the probation
officer under civil service regulations from among those
who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the
compensation of such probation officers and
administrative personnel until such positions shall have
been included in the Appropriation Act.

But the probation officers and the administrative

personnel referred to in the foregoing section are clearly
not those probation officers required to be appointed for
the provinces under section 11. It may be said, reddendo
singula singulis, that the probation officers referred to in
section 10 above-quoted are to act as such, not in the
various provinces, but in the central office known as the
Probation Office established in the Department of Justice,
under the supervision of the Chief Probation Officer. When
the law provides that "the probation officer" shall
investigate and make reports to the court (secs. 1 and 4);
that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer
shall report to the "probationer officer" (sec. 3, par. c.),
shall allow "the probationer officer" to visit him (sec. 3,
par. d), shall truthfully answer any reasonable inquiries on
the part of "the probation officer" concerning his conduct
or condition (sec. 3, par. 4); that the court shall notify "the
probation officer" in writing of the period and terms of
probation (sec. 3, last par.), it means the probation officer
who is in charge of a particular probationer in a particular
province. It never could have been intention of the
legislature, for instance, to require the probationer in
Batanes, to report to a probationer officer in the City of
Manila, or to require a probation officer in Manila to visit
the probationer in the said province of Batanes, to place
him under his care, to supervise his conduct, to instruct
him concerning the conditions of his probation or to
perform such other functions as are assigned to him by
law.

That under section 10 the Secretary of Justice may

appoint as many probation officers as there are provinces
or groups of provinces is, of course possible. But this
would be arguing on what the law may be or should be
and not on what the law is. Between is and ought there is
a far cry. The wisdom and propriety of legislation is not for
us to pass upon. We may think a law better otherwise than
it is. But much as has been said regarding progressive
interpretation and judicial legislation we decline to amend
the law. We are not permitted to read into the law matters
and provisions which are not there. Not for any purpose —
not even to save a statute from the doom of invalidity.

Upon the other hand, the clear intention and policy

of the law is not to make the Insular Government defray
the salaries of probation officers in the provinces but to
make the provinces defray them should they desire to
have the Probation Act apply thereto. The sum of P50,000,
appropriated "to carry out the purposes of this Act", is to
be applied, among other things, for the salaries of
probation officers in the central office at Manila. These
probation officers are to receive such compensations as
the Secretary of Justice may fix "until such positions shall
have been included in the Appropriation Act". It was the
intention of the legislature to empower the Secretary of
Justice to fix the salaries of the probation officers in the
provinces or later on to include said salaries in an
appropriation act. Considering, further, that the sum of
P50,000 appropriated in section 10 is to cover, among
other things, the salaries of the administrative personnel
of the Probation Office, what would be left of the amount
can hardly be said to be sufficient to pay even nominal
salaries to probation officers in the provinces. We take
judicial notice of the fact that there are 48 provinces in
the Philippines and we do not think it is seriously
contended that, with the fifty thousand pesos
appropriated for the central office, there can be in each
province, as intended, a probation officer with a salary not
lower than that of a provincial fiscal. If this a correct, the
contention that without section 11 of Act No. 4221 said act
is complete is an impracticable thing under the remainder
of the Act, unless it is conceded that in our case there can
be a system of probation in the provinces without
probation officers.

Probation as a development of a modern penology

is a commendable system. Probation laws have been
enacted, here and in other countries, to permit what
modern criminologist call the "individualization of the
punishment", the adjustment of the penalty to the
character of the criminal and the circumstances of his
particular case. It provides a period of grace in order to aid
in the rehabilitation of a penitent offender. It is believed
that, in any cases, convicts may be reformed and their
development into hardened criminals aborted. It,
therefore, takes advantage of an opportunity for
reformation and avoids imprisonment so long as the
convicts gives promise of reform. (United States vs.
Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309;
312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F.
[2d], 664, 665.) The Welfare of society is its chief end and
aim. The benefit to the individual convict is merely
incidental. But while we believe that probation is
commendable as a system and its implantation into the
Philippines should be welcomed, we are forced by our
inescapable duty to set the law aside because of the
repugnancy to our fundamental law.

In arriving at this conclusion, we have endeavored

to consider the different aspects presented by able
counsel for both parties, as well in their memorandums as
in their oral argument. We have examined the cases
brought to our attention, and others we have been able to
reach in the short time at our command for the study and
deliberation of this case. In the examination of the cases
and in then analysis of the legal principles involved we
have inclined to adopt the line of action which in our
opinion, is supported better reasoned authorities and is
more conducive to the general welfare. (Smith, Bell & Co.
vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict
of authorities, we have declined to be bound by certain
adjudicated cases brought to our attention, except where
the point or principle is settled directly or by clear
implication by the more authoritative pronouncements of
the Supreme Court of the United States. This line of
approach is justified because:

(a) The constitutional relations between the Federal and

the State governments of the United States and the dual
character of the American Government is a situation which
does not obtain in the Philippines;

(b) The situation of s state of the American Union of the

District of Columbia with reference to the Federal
Government of the United States is not the situation of the
province with respect to the Insular Government (Art. I,
sec. 8 cl. 17 and 10th Amendment, Constitution of the
United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations

of the United States do not embrace the integrated judicial
system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases"

(Justice Holmes in Lochner vs. New York [1904], 198 U. S.,
45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . .
new developments of times and circumstances" (Chief
Justice Waite in Pensacola Tel. Co. vs. Western Union Tel.
Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law
Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142),
fundamental principles should be interpreted having in
view existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional

and void and the writ of prohibition is, accordingly,
granted. Without any pronouncement regarding costs. So
ordered.

Avanceña, C.J., Imperial, Diaz and Concepcion, JJ., concur.

Villa-real and Abad Santos, JJ., concur in the result.