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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
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.

DECISION
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 his petition, inter
alia, that he is innocent of the crime of which he was convicted, that he has no criminal record and that he
would observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro Tuason
presiding, referred the application for probation of the Insular Probation Office which recommended
denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch, Judge
Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937,
alleging, among other things, that Act No. 4221, assuming that it has not been repealed by section 2 of

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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:

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

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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

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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 integrated 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.

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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

Page 6 of 24
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 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. 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 at 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

Page 7 of 24
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. 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 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 best 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

Page 8 of 24
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.

Page 9 of 24
(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-

Page 10 of 24
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
(VideConstitution of the United States, Art. II, sec. 2; In reLontok[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

Page 11 of 24
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

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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 from
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.)

Page 13 of 24
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

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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.)

Page 15 of 24
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.,

Page 16 of 24
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

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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 expediency 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

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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

Page 19 of 24
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.

Page 20 of 24
[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.)
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

Page 21 of 24
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;

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(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

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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.

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