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FIRST DIVISION

[G.R. No. 45685. November 16, 1937.]

THE PEOPLE OF THE PHILIPPINE ISLANDS and THE HONGKONG &


SHANGHAI BANKING CORPORATION , petitioners, vs . JOSE O. VERA,
J u d g e ad interim of the Court of First Instance of Manila, and
MARIANO CU UNJIENG , respondents.

Solicitor-General Tuason and City Fiscal Diaz for the Government.


DeWitt, Perkins & Ponce Enrile for the Hongkong & Shanghai Banking
Corporation.
Vicente J. Francisco, Feria & La O, Orense & Belmonte and Gibbs & McDough for
respondent Cu Unjieng.
No appearance for respondent Judge.

SYLLABUS

1. PROBATION; AUTHORITY OF PROBATION COURT TO LOOK INTO


CIRCUMSTANCES OF OFFENSE; SUPERIOR AND INFERIOR COURTS; LEGAL RELATION
AND ETHICAL STANDARD. — Probation implies guilt by nal judgment. While a
probation court hearing a probation case may look into the circumstances attending
the commission of the offense, this does not authorize it to reverse the ndings and
conclusions of the Supreme Court, either directly or indirectly, especially where from its
own admission reliance was merely had on the printed briefs, averments, and pleadings
of the par ties. As observed 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.
2. CONSTITUTIONAL LAW; THE PRESIDENT AND HIS VETO POWER;
PRESIDENT'S VETO NOT BINDING ON THE SUPREME COURT. — In vetoing a bill, the
President may express the reasons which he may deem proper, but his reasons are not
binding upon the Supreme Court in the determination of actual controversies submitted
to it for 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 before the
Supreme 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 the judgment of the court one way or another and prevent it from taking what in
its opinion is the proper course of action to take in a given case.
3. ID.; INDEPENDENCE OF THE JUDICIARY. — If it is ever necessary to make
any vehement a rmance during this formative period of our political history, it is that
the judiciary is independent of the Executive no less than of the Legislative department
of our government — independent in the performance of its functions, undeterred by
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any consideration, free from politics, indifferent to popularity, and unafraid of criticism
in the accomplishment of its sworn duty as it sees it and understands it.
4. ID.; WHEN CONSTITUTIONALITY MAY BE RAISED. — The constitutionality
of an act of the legislature will not be determined by the courts unless that question is
properly raised and presented in appropriate cases and is necessary to a determination
of the case; i. e., the issue of constitutionality must be the very lis mota presented.
5. ID.; ID.; RESORT TD EXTRAORDINARY LEGAL REMEDIES; ADJUDICATED
CASES. — 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 avail
able, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922], 42
Phil., 818), the Supreme 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, a rmed
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 in junction 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.)
6. ID. ; ID.; ID.; ID.; PROHIBITION; RULE WHERE JURISDICTION IS
EXCLUSIVELY DERIVED FROM UNCONSTITUTIONAL STATUTE. — 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. The general rule, although
there is a con ict in the cases, is that the writ of prohibition will notice where the
inferior court has jurisdiction independent of the statute the constitutionality of which is
questioned, because in such cases the inferior 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 en forcing that statute.
7. ID.; ID.; ID.; ID.; ID.; COURTS OF FIRST INSTANCE; LIMITED JURISDICTION
IN PROBATION CASES. — A Court of First Instance sitting in probation proceedings is a
court of limited jurisdiction. Its jurisdiction in such proceeding is conferred exclusively
by Act No. 4221 of the Philippine Legislature.
8. ID.; ID. CONSTITUTIONALITY MUST BE RAISED AT THE EARLIEST
OPPORTUNITY; EXCEPTIONS. — As a general rule, the question constitutionality must
be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it
may be raised at the trial, and if not raised in the trial court, it will not be considered on
appeal. But the general rule admits of exceptions. Courts, in the exercise of sound
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discretion, may determine the time when a question affecting the constitutionality of a
statute should be presented. Thus, in criminal cases, although there is a very sharp
con ict of authorities, it is said that the question may be raised for the rst time at any
stage of the ù proceedings, either in the trial court or on appeal. 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 rst time on appeal, if it appears that a determination of the
question is .necessary to a decision of the case. 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.
9. ID.; ID.; PERSONAL AND SUBSTANTIAL INTEREST OF PARTY RIGHT AND
INTEREST OF THE PEOPLE OF THE PHILIPPINES TO CHALLENGE
CONSTITUTIONALITY. — 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 in icted 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.
10. ID.; ID.; RELIANCE ON PROBATION ACT, BY FISCAL DOES NOT
CONSTITUTE ESTOPPEL AGAINST THE PEOPLE. — The mere fact that the Probation
Act has been repeatedly relied upon in 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 now as sailing its validity. For courts will pass upon a
constitutional question only when presented before it in bona de 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 scal and all others are justi ed in
relying upon the statute and treating it as valid until it is held void by the courts in
proper cases.
11. ID.; ID.; WHEN DETERMINATION OF CONSTITUTIONALITY NECESSARY;
WAIVER IF CASE CAN BE DECIDED ON OTHER POINTS. — While the court will meet the
question with firmness, where its decision is indispensable, it is the part of wisdom, and
a 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, as where the right of a party is founded solely on a statute the
validity of which is attacked. (12 C. J., p. 782.)
12. ID.; ID.; ID.; REASONS OF PUBLIC POLICY JUSTIFYING CONSTITUTIONAL
INQUIRY. — The Supreme Court will 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 many 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 re
respondent M. C. U. has been at large for a period of about four years since his rst
conviction. All await 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
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constitutionality of Act No. 4221 be now resolved.
13. ID.; THE JUDICIARY; ITS DUTY TO ENFORCE THE CONSTITUTION. —
Under a doctrine peculiarly American, it is the o ce and duty of the judiciary to enforce
the Constitution. The Supreme 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 con ict with the fundamental law. It
will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will
not hesitate to Five effect to the supreme law by setting aside a statute in con ict
therewith. This is of the essence of judicial duty.
14. ID.; ID.; STATUTORY CONSTRUCTION; PRESUMPTION IN FAVOR OF
CONSTITUTIONALITY; RATIONALE OF PRESUMPTION. — All reason able 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 rst determined by
the legislative department of the government itself." ( U. S. vs. Ten Yu [1912], 24 Phil., 1,
10; Case is. Board of Health and Heiser [1913], 24 Phil., 250, 276; U. S. vs. Joson
t1913], 26 Phil., 1.) And a statute nally 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. Then, there is that peculiar political philosophy which bids
the judiciary to re ect the wisdom of the people as expressed through an elective
Legislature and an elective Chief Executive. It follows that the courts will not set aside a
law as violative of the Constitution except in clear cases.
15. ID.; THE PARDONING POWER UNDER THE JONES LAW AT THE
CONSTITUTION OF THE PHILIPPINES. — Section 21 of the Jones Law, in e at the time
of the approval of Act No. 4221, vests in the Governor-General of the Philippines "the
exclusive power to grant pardons and reprieves and remit nes and forfeitures." This
power is now vested in the President of the Philippines. The provisions of the Jones
Law and the Constitution of the Philippines 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. The Governor-General of the Philippines
was thus empowered, like the President of the United States, to pardon a person before
the facts of his 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.
16. ID.; ID.; ROYAL PARDON UNDER ENGLISH LAW; POWER OF THE HOUSE
OF LORDS. — 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." The reason for the distinction is obvious. In England,
judgment on impeachment is not con ned to mere "removal from o ce and
disquali cation to hold and enjoy any o ce of honor, trust, or pro t under the
Government" but extends to the whole punishment attached by law to the offense
committed. The House of Lords, on a conviction may, by its sentence, in ict capital
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punishment, perpetual banishment, ne or imprisonment, depending upon the gravity of
the offense committed, together with removal from office and incapacity to hold office.
17. ID.; ID.; COMMUTATION AND AMNESTY UNDER THE PHILIPPINE
CONSTITUTION. — Our Constitution makes speci c mention of "commutation" and of
the power of the executive to impose, in the par dons 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.
18. ID.; ID.; EXCLUSIVE CHARACTER OF THE PARDONING POWER. — 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 o cer 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. 540, 541.) 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).
19. ID.; PROBATION, POWER OF THE PHILIPPINE LEGISLATURE TO ENACT A
PROBATION LAW. — The Philippine Legislature, like the Congress of the United States,
may legally enact a probation law under its broad power to x the punishment of any
and all penal offenses. The legislative power to set punishment for crime is very broad,
and in the exercise of this power the legislature may confer on trial judges, if it sees t,
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.
Indeed, the Philippine Legislature has de ned all crimes and xed 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 circumstance, should suffer.
20. ID.; ID.; PROBATION AND PARDON NOT COTERMINOUS; PROBATION
DISTINGUISHED FROM REPRIEVE AND COMMISSION. — Probation and pardon are not
coterminous; nor are they the same. They are actually distinct and different from each
other, both in origin and in nature. In probation, the probationer is in no true sense, as in
pardon, a freeman He is not nally and completely exonerated. He is not exempt from
the entire punishment which the law in icts. Under the Probation Act, the probationer's
case is not terminated by the mere fact that he is placed on probation. The probationer,
during the period of probation, remains in legal custody — subject to the control of the
probation o cer and of the court, he may be rearrested upon the non-ful llment of the
conditions of probation and, when rearrested, may be committed to prison to serve the
sentence originally imposed upon him. Probation should also be distinguished from
reprieve and from commutation of the sentence.
21. ID.; ID.; ID.; PROBATION NOT IN CONFLICT WITH PARDONING POWER. —
The Probation Act does not con ict 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
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rearrest and imprisonment.
22. ID.; DIVISION OF POWERS. — Under our constitutional system 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 the popular will. Each has exclusive cognizance of the matters within its
jurisdiction, and is supreme with in its own sphere.
23. ID.; ID.; DELEGATION OF LEGISLATIVE AUTHORITY HISTORICAL
DEVELOPMENT. — The power to make laws — the legislative power — is vested in a
bicameral Legislature by the Jones Law and in a unicameral National Assembly by the
Constitution. 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 de legata 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.
24. ID.; ID.; ID.; RULE FORBIDDING DELEGATION OF LEGISLATIVE
AUTHORITY NOT INFLEXIBLE; EXCEPTIONS. — The rule, however which forbids the
delegation of legislative power is not absolute and in exible. It admits of exceptions.
An exception sanctioned by immemorial practice permits the central legislative body to
delegate legislative powers to local authorities. On quite the same principle, Congress
is empowered to delegate legislative power to such agencies in the territories of the
United States as it may select. Courts have also sustained the delegation of legislative
power to the people at large, though some authorities maintain that this may not be
done. Doubt less, 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 x within speci ed 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 prescribe, to promulgate rules and regulations to carry
out a declared national policy."
25. ID.; ID.; ID.; TEST OF UNDUE DELEGATION; DETAILS OF EXECUTION. — In
testing whether a statute constitutes 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. In United States vs. Ang Tang Ho (
[1922], 43 Phil., 1), the Supreme Court adhered to the foregoing rule. The general rule,
however, is limited by another rule that to a certain extent matters of detail may be left
to be lled in by rules and regulations to be adopted or promulgated by executive
o cers and administrative boards. As a rule, an act of the legislature is incomplete and
hence invalid if it does not lay down any rule or de nite standard by which the
administrative board may be guided in the exercise of the discretionary powers
delegated to it.
26. ID.; ID.; ID.; PROBATION ACT MAKES VIRTUAL SURRENDER OF
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LEGISLATIVE POWER TO PROVINCIAL BOARDS. — The Probation Act does not, by the
force of any of its provisions, x and impose upon the provincial boards any standard
or guide in the exercise of their discretionary power. What is granted is a "roving
commission" which enables the provincial boards to exercise arbitrary discretion. By
section 11 of the Act, the legislature does seemingly on its own authority extend the
bene ts of the Probation Act to the provinces but in reality leaves the entire matter for
the various provincial boards to determine. If a 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 o cer. This is a virtual surrender of
legislative power to the provincial boards.
27. ID.; ID.; ID.; TRUE DISTINCTION BETWEEN POWER TO MAKE LAW AND
DISCRETION AS TO ITS EXECUTION; ADJUDICATED CASES. — The true distinction 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 rst 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 decisions of the Supreme Court in the
Municipality of Cardona vs. Municipality of Binañgonan ([1917], 36 Phil., 547); Rubi vs.
Provincial Board of Mindoro ([1919], 39. Phil., 660); and Cruz vs. Youngberg ([1931], 56
Phil., 234).
28. ID.; ID.; ID.; CONDITIONAL ENFORCEMENT OF A LAW; RELAXATION OF
THE DOCTRINE. — 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 States ruled that the legislature may delegate a power not legislative which it
may itself rightfully exercise. 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. Notwithstanding the apparent
tendency to relax the rule pro hi biting delegation of legislative authority on account of
the complexity arising from social and economic forces at work in this modern
industrial age, the orthodox pronouncement of .Judge Cooley in his work on
Constitutional Limitations nds restatement in Professor Willoughby's treatise on the
Constitution of the United States and is accepted.
29. ID.; ID.; ID.; OPERATION OF PROBATION ACT NOT CONTINGENT ON
SPECIFIED FACTS OR CONDITIONS; DISCRETION VESTED IN PROVINCIAL BOARDS
ARBITRARY. — The legislature has not made the operation of the Probation Act
contingent upon specified facts or conditions to be ascertained by the provincial board.
It leaves the entire operation or non-operation of the law upon the provincial boards.
The discretion vested is arbitrary be cause it is absolute and unlimited. A provincial
board need not investigate conditions or nd any fact, or await the happening of any
speci ed 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 or have any reason whatsoever for refusing or failing to appropriate any funds
for the salary of a probation officer. This is a matter which rests entirely at its pleasure.
30. ID.; ID.; ID.; LOCAL OPTION LAWS RIGHT OF LOCAL SELF-GOVERNMENT;
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SUSPENSION OF OPERATION OF A GENERAL LAW COUNTENANCED. — 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 many jurisdictions 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. Without denying 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 in
matters 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.
31. ID.; ID.; ID.; PROVINCIAL BOARDS EMPOWERED TO SUSPEND
OPERATION OF PROBATION ACT. — 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 o cers 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. ,T., p. 786.)
32. ID.; ID.; ID.; LEGISLATIVE POLICY; EXECUTION THEREOF CONSTITUTION
BOTH A GRANT AND LIMITATION OF POWER. — 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. 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.
33. ID.; EQUAL PROTECTION OF THE LAWS; CLASS LEGISLATION;
CLASSIFICATION ON REASONABLE BASIS. — " . . . nor shall any person be denied the
equal protection of the laws." This basic individual right sheltered by the Constitution is
a restraint on all the three grand departments of our government and on the
subordinate instrumentalities and subdivisions thereof, and on many constitutional
powers, like the police power, taxation and eminent domain. What may be regarded as a
denial of the equal protection of the laws is a question not always easily determined.
No rule that will cover every case can be formulated. Class legislation discriminating
against some and favoring others is prohibited. But classi cation on a reasonable
basis, and not made arbitrarily or capriciously, is permitted. The classi cation, 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.
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34. ID.; ID.; ID.; RESULTANT INEQUALITY FROM UNWANTED DELEGATION;
PROBATION ACT PERMITS DENIAL OF EQUAL PROTECTION. — In the case of Act No.
4221, the resultant inequality may be said to ow from the unwarranted delegation of
legislative power to the provincial boards. While inequality may result in the application
of the law and in the conferment of the bene ts therein provided, inequality is not in all
cases the necessary result. But whatever may be the case, it is clear that 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 courts 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 denies equal protection and 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 prohibition. In other words, statutes
may be adjudged unconstitutional because of their effect in operation. If a law has the
effect of denying the equal protection of the law it is unconstitutional.
35. ID.; ID.; ID.; SECTION 11 OF PROBATION ACT; GOVERNMENT OF LAWS;
EQUALITY CLAUSE NOT "A ROPE OF SAND". — 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 the
other provinces, but one province may appropriate for the salary of a probation o cer
of a given year — and have probation during that year — and thereafter decline to make
further appropriation, and have no probation in 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."
36. ID.; PARTIAL UNCONSTITUTIONALITY; PRESUMPTION AGAINST
MUTILATION OF STATUTE. — 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 pro vision 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.
37. ID.; SECTION 11 OF PROBATION ACT INSEPARABLE FROM REST OF ACT;
PROBATION AND PROBATION OFFICERS. — Section 11 of the Probation Act (No. 4221)
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
bene t to a large number of people who may be deserving of the intended bene cial
results 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 a rmative action of the different provincial boards. If not one of the
provinces — and this is the actual situation now — appropriates the necessary fund for
the salary of a probation o cer, probation under Act No. 4221 would be illusory. There
can be no probation without a probation o cer. Neither can there be a probation
officer with out a probation system.
38. ID.; ID.; PROBATION ACT ANALYZED; SECTIONS 10 AND 11 ACT; RULE
OF STATUTORY CONSTRUCTION. — The probation o cer the administrative personnel
referred to in section 10 are clearly not those probation o cers required to be
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appointed for the provinces under section 11. It may be said, reddendo singula singulis,
that the probation o cers referred to in section 10 are to act as such, not in the various
provinces, but in the central o ce known as the Probation O ce established in the
Department of Justice, under the supervision of a Chief Probation O cer. When the law
provides that "the probation o cer" shall investigate and make reports to the court;
that "the probation o cer" shall supervise and visit the probationer; that the
probationer shall report to the "probation o cer", shall al low "the probation o cer" to
visit him, shall truthfully answer any reasonable inquiries on the part of "the probation
o cer" concerning his conduct or condition; that the court shall notify "the probation
o cer" in writing of the period and terms of probation, it means the probation o cer
who is in charge of a particular probationer in a particular province. It never could have
been the intention of the legislature, for instance, to re quire a probationer in Batanes, to
report to a probation o cer in the City of Manila, or to require a probation o cer in
Manila to visit the probationer in the said province of Batanes, to place him under his
care, to supervise his conduct, to instruct him concerning the conditions of his
probation or to perform such other functions as are assigned to him by law.
39. ID.; ID.; ID.; ID.; WISDOM AND PROPRIETY OF LEGISLATION;
PROGRESSIVE INTERPRETATION AND JUDICIAL LEGISLATION. — That under section
10 the Secretary of Justice may appoint as many probation o cers 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 beand not on what the law is. Between is and ought
there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We
may think a law better otherwise than it is. But much as has been said regarding
progressive interpretation and judicial legislation we decline to amend the law. We are
not permitted to read into the law matters and provisions which are not there. Not for
any purpose — not even to save a statute from the doom of invalidity.
40. ID.; ID.; ID.; ID.; APPROPRIATION OF FUNDS; APPOINTMENT OF
PROBATION OFFICERS BY SECRETARY OF JUSTICE; JUDICIAL NOTICE. — The clear
intention and policy of the law is not to make the Insular Government defray the salaries
of probation o cers 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 o cers in the central o ce at Manila. These probation o cers
are to receive such compensation as the Secretary of Justice may x "until such
positions shall have been included in the Appropriation Act". It was not the intention of
the legislature to empower the Secretary of Justice to x the salaries of probation
o cers 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
O ce, what would be left of the amount can hardly be said to be su cient to pay even
nominal salaries to probation o cers 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 fty thousand pesos appropriated for the central o ce, there
can be in each province, as intended, a probation o cer with a salary not lower than
that of a provincial scal. If this is 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 there can be a system of probation in the provinces without
probation officers.
41. ID.; PROBATION AS DEVELOPMENT OF MODERN PENOLOGY;
PROBATION ACT AS REPUGNANT TO FUNDAMENTAL LAW. — Probation as a
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development of modern penology is a commendable system. Probation laws have
been enacted, here and in other countries, to permit what modern criminologists call
the "individualization of 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 many
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 convict gives promise of reform. The welfare of society is
its chief end and aim. The bene t to the individual convict is merely incidental. But while
probation is commendable as a system and its implantation into the Philippines should
be welcomed, the law is set aside because of repugnancy to the fundamental law.
42. ID.; CONSTITUTIONAL RELATIONS; RULES OF STATUTORY
CONSTRUCTION; DECISIONS OF UNITED STATES COURTS; LOCAL CONDITIONS AND
ENVIRONMENT. — 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. The situation of a state of the
American Union or of the District of Columbia with reference to the Federal Government
of the United States is not the situation of a province with respect to the Insular
Government; the distinct federal and state judicial organizations of the United States do
not embrace the integrated judicial system of the Philippines; "General propositions do
not decide concrete cases" and "to keep pace with . . . new developments of times and
circumstances", fundamental principles should be interpreted having in view existing
local conditions and environments.

DECISION

LAUREL , J : p

This is an original action instituted in this court on August 19, 1937, for the
issuance of the writs 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 nal
judgment of conviction rendered by this court in said case (G. R. No. 41200). 1

Petitioners herein, the People of the Philippine Islands 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.

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The information in the aforesaid criminal case was led 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 of the testimony and the bulk of 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 an
indeterminate penalty ranging from four years and two months of prision correccional
to eight years of prison 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, modi ed 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 prison mayor, but affirmed the judgment in all other respects. Mariano Cu
Unjieng led a motion for reconsideration and four successive motions for new trial
which were denied on December 17, 1935, and nal 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 led by the defendant for leave to le 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 led 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 to the Insular Probation O ce
which recommended denial of the same on 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 led an opposition to the
granting of probation to the herein respondent Mariano Cu Unjieng. The private
prosecution also led an opposition on April 5, 1937, alleging, among other things, that
Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the
Constitution, is nevertheless violative of section 1, subsection (1), Article III of the
Constitution guaranteeing equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and because section 11 of said Act
No. 4221 endows the provincial boards with the power to make said law effective or
otherwise in their respective provinces. The private prosecution also led a
supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality of 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 nding that "las pruebas no han establecido de una manera
concluyente la culpabilidad del peticionario y que todos los hechos probados no son
inconsistentes o incongruentes con su inocencia" and concludes that the herein
respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime for which
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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 probacion 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 diferentes, 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 led an
exception to the resolution denying probation and a notice of intention to le a motion
for reconsideration. An alternative motion for reconsideration or new trial was led 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 led with the
trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion
subsequently led 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 led 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 led its opposition to the motion for
leave to intervene as amici curiae aforementioned, asking that a date be set for the
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."
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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 reasons:
(1) Under section 11 of Act No. 4221, the said Act 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 not provided for the salary of a
probation o cer as required by section 11 thereof; it being immaterial that there is an
Insular Probation O ce willing to act for the City of Manila, said Probation O ce
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 nal and executory at the moment of its
rendition.
(3) No right of 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 nding that Mariano Cu Unjieng is
innocent of the crime for which he was convicted by nal judgment of this court, which
nding 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 o ce
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 aver that they have no other plain, speedy and adequate remedy
in the ordinary course of law.

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In a supplementary petition led 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 each province
the absolute discretion to make said law operative or other wise 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 Courts of First Instance of the 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 rst time with the issues raised by the other
petitioner regarding the constitutionality of Act No. 4221, and in 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 led
two memorandums in which he contended that Act No. 4221 not only encroaches upon
the pardoning power of the executive, but also constitutes 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 other
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 led by the same persons on the same day, October 9,
1937, alleging that Act No. 4221 is unconstitutional because it denies the equal
protection of the laws and constitutes an unlawful delegation of legislative power and,
further, that the whole Act is void; that the Commonwealth is not estopped from
questioning the validity of its laws; that the private prosecution may intervene in
probation proceedings and may attack the probation law as unconstitutional; and that
this court may pass upon the constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral
argument and memorandums, challenge each and every one of the foregoing
proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts su cient 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 led
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.
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(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 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 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 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 speci cally 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 nal 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 yet become nal
and executory for the reason that the said respondent had led an alternative motion
for reconsideration and new trial within the requisite period of fteen days, which
motion the trial court was not able to resolve in view of the restraining order
improvidently and erroneously issued by this court.
(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not nal 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 le 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 le 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 the hypothesis that the resolution of the trial 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 exercised 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 respondents 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 would
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 led on October 23, 1937, counsel for the respondents
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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 led 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 the Act cannot be attacked
for the rst time before this court; that prohibition is unavailable; and that, in any event,
section 11 of 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 led out of time but
was admitted by resolution of this court and led 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 aspect 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 the 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 nal pronouncement of guilt
by this court. (G. R. No. 41200.) Probation implies guilt by nal judgment. While a
probation court hearing a probation case may look into the circumstances attending
the commission of the offense, this does not authorize it to reverse the ndings and
conclusions of this court, either directly or indirectly, especially where from 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 a rmative, whether or not said Act is constitutional. Consideration of these
issues will involve a discussion of certain incidental questions raised by the parties.
To arrive at a correct conclusion on the rst 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 its properly raised
and presented in appropriate 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
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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 [a rmed 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 met squarely by the respondents 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 rst instance over inferior tribunals or persons, and original jurisdiction
over courts of rst 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 a 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 of the act's validity promptly before it and decide it 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. Cas., 764; Traux vs. Raich, 239 U. S., 33, 60
Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and
Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct.
Rep., 298; Ann. Cas., 1918A, 1024). Although objection to the jurisdiction was
raised 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 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 con ict in
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the cases, is that the writ of prohibition will not lie where the inferior court has
jurisdiction independent of the statute the constitutionality of which is questioned,
because in such cases the inferior 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 Roundtree [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 derive 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 nal 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 a 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 Sessions [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 de ne and x 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, xed
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 petitioners 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.
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It is, of course, true that the constitutionality of a statute will not be considered
on application for prohibition where the question has not been properly brought to the
attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30
S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at
bar, it is unquestionable that the constitutional issue has been squarely presented not
only before this court by the petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O. Vera, however, acting as judge of the court
below, declined to pass upon the question on the ground that the private prosecutor,
not being a party whose rights are affected by the statute, may not raise said question.
The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J.,
sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113
N. E., 742, 743), as authority for the proposition that a court will not consider any attack
made on the constitutionality of a statute by one who has no interest in defeating it
because his rights are not affected by its operation. The respondent judge further
stated that it may not motu proprio take up the constitutional question and, agreeing
with Cooley that "the power to declare a legislative enactment void is one which the
judge, conscious of the fallibility of the human judgment, will shrink from exercising in
any case where he can conscientiously and with due regard to duty and o cial 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
quoadmits 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
reiterate 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 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 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 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 [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although
there is a very sharp con ict of authorities, it is said that the question may be raised for
the rst 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 rst 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
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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 rst 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 in icted 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 o cer 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 upon 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 justi cation is unconstitutional, it is a 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 speci c injury. (State vs. Kansas City, 60 Kan., 518 [57 Pac., 118]').
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(State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.)
"Where the constitutionality of a statute is in doubt the state's law o cer,
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], 221 N. Y., 295; 116 N. E.,
1020; Bush vs. State [1918], 187 Ind., 339; 119 N. E., 417; State vs. Watkins [1933], 176
La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Louisiana 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 La. 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 nds it in
con ict with one which it is his duty to enforce. In State ex rel. Hall, District
Attorney, vs. Judge, etc., the ruling was that the judge should not, merely because
he believed a certain statute to be unconstitutional, forbid the district attorney to
le 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 o cer 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
o cers, 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 nds two statutes in con ict 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
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People of the Philippines, one of the petitioners herein, the principal reasons being that
the validity of the Probation Act cannot be attacked for the rst time before this court,
that the City Fiscal is estopped from attacking the validity of the Act and, not being
authorized to enforce laws outside of the City of Manila, cannot 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 in 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 now assailing its validity. For
courts will pass upon a constitutional question 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 scal and all others
are justi ed 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 rmness, where its decision is indispensable, it is the part of
wisdom, and a 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. Comm., 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. Niagara 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, this 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 many 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 rst conviction. All await the decision of this court
on the constitutional question. Considering, therefore, the importance which the instant
case has assumed and to prevent multiplicity of suits, strong reasons of public policy
demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059. See 6 R. C. L.,
pp. 77, 78; People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442, 444; Ann. Cas.
1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N. W., 209, 211; 37 L. R. A.
[N. S.], 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng
vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the
property and personal rights of nearly twelve thousand merchants are affected by
these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by
the courts, in the interest of the public welfare and for the advancement of public policy,
we have determined to overrule the defense of want of jurisdiction in order that we may
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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 o ce 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 con ict with the fundamental law. 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 con ict
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 rst 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 nally 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 government. (6 R. C. L., p. 101.) Then, there is that peculiar
political philosophy which bids the judiciary to re ect 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 con dence 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 National 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 su cient 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
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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 one way or
another and prevent us from taking what in our opinion is the proper course of action to
take in a given case. If it is ever necessary for us to make any vehement a rmance
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 it
constitutes an undue delegation of legislative power; and (3) that it denies the equal
protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known
as the Jones Law, in force at the time of the approval of Act No. 4221, otherwise known
as the Probation Act, vests in the Governor- General of the Philippines "the exclusive
power to grant pardons and reprieves and remit nes and forfeitures". This power is
now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The
provisions of the Jones Law and the Constitution differ in some respects. The adjective
"exclusive" found in the Jones Law has been omitted from the Constitution. Under the
Jones Law, as at common law, pardon could be granted any time after the commission
of the offense, either before or after conviction (Vide Constitution of the United States,
Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines
was thus empowered, like the President of the United States, to pardon a person before
the facts of the case were fully brought to light. The framers of our Constitution
thought this undesirable and, following most of the state constitutions, provided that
the pardoning power can only be exercised "after conviction". So, too, under the new
Constitution, the pardoning power does not extend to "cases of impeachment". This is
also the rule generally followed in the United States (Vide Constitution of the United
States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be
pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has
been solemnly heard and determined, it is not understood that the king's royal grace is
further restrained or abridged." ( Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed.,
421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake
[1876], 29 Ohio St., 457; 23 Am. Rep., 762.) The reason for the distinction is obvious. In
England, judgment on impeachment is not con ned to mere "removal from o ce and
disquali cation to hold and enjoy any o ce of honor, trust, or pro t 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, in ict capital punishment, perpetual banishment, ne or
imprisonment, depending upon the gravity of the offense committed, together with
removal from o ce and incapacity to hold o ce. (Com. vs. Lockwood, supra.) Our
Constitution also makes speci c 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 signi cance of these fundamental changes. It is su cient 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
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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 o cer 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. 540, 541, 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 inde nitely suspending sentence
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 sentence 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 xed 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 in nite variations
which may be presented to them for judgment, recourse must be had to 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 nally taken on March 4, 1925
(chap. 521, 43 Stat. at L. 1259, U. S. C. title 18, sec. 724). This was followed by an
appropriation to defray the salaries and expenses of a certain number of probation
officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U. S., 347; 48 Sup. Ct. Rep., 146; 72 Law.
ed., 309), the Supreme Court of the United States, through Chief Justice Taft, held that
when a person sentenced to imprisonment by a district court has begun to serve his
sentence, that court has no power under the Probation Act of March 4, 1925 to grant
him probation even though the term at which sentence was imposed had not yet
expired. In this case of Murray, the constitutionality of the Probation Act was not
considered but was assumed. The court traced the history of the Act and quoted from
the report of the Committee on the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 2d 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 o cers 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.
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Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court denied the right of the
district courts to suspend sentence. 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 was 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 x 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
de ne 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 t, 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 de ned all crimes and xed 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
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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 cases 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 period, in case the penalty prescribed by law
contains three periods, the extent of the penalty according to the number and nature of
the aggravating and mitigating circumstances and the extent of the evil produced by
the crime. In the imposition of nes, the courts are allowed to x 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 fteen but over nine years
of age, who has not acted without discernment, but always lower by two degrees at
least than that prescribed by law for the crime which he has committed. Article 69 of
the same Code provides that in case of "incomplete self-defense", i. e., when the crime
committed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability in the several cases
mentioned in articles 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 in icted 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 nal sentence has
been pronounced, or while he is serving his sentence, 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 10) and granting the courts large discretion in imposing the penalties of the
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law. Section 1 of the law as amended provides: "Hereafter, in imposing a prison
sentence for an offense 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
xed 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. Finally came the (Adult)
Probation Act now in question. In this Act is again manifested the intention of the
legislature to "humanize" the penal laws. It allows, in effect, the modi cation 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 offense, 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. If this be so, then, it cannot be said that
the Probation Act comes in con ict 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 of the state and observed that "while the governor alone is vested with the
power to pardon after nal sentence has been imposed by the courts, the power of the
courts to impose 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 con ict 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 sentence, 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. Summer eld 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;
State vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James 1925; C. C. A., 9th], 7 F. [2d],
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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. State [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. Hilarie, 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
ex rel. Forsyth vs. Court of Sessions [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. State [1854], 34
Tenn., 232; Woods 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., 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. Tingstad 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. Tingstad 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 o cer 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 distinct 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 origin and 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 inde nitely, but the conviction and liability following it, and all 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
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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 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 had so long maintained. The
two powers, so distinct and different in their nature and character, were still left
separate and distinct, the one to be exercised by the executive, and the other by
the judicial department. We therefore conclude that a statute which, in terms,
authorizes courts of criminal jurisdiction to suspend sentence in certain cases
after conviction, — a power inherent in such courts at common law, which was
understood when the constitution was adopted to be an ordinary judicial function,
and which, ever since its adoption, has been exercised by the courts, is a valid
exercise 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 Director 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 nally and completely exonerated. He is not exempt from the entire punishment
which the law in icts. 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 de nitely terminated and the probationer nally discharged from
supervision only after the period of probation shall have been terminated and the
probation o cer 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 o cer and of the court; and, he may be rearrested upon the non-ful llment 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 ne 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
con ict 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
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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 a probation law authorizing the inde nite
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 suspension of 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 con ict 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 inde nite 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 held in con ict with the
power con ding in the Governor to grant commutations of punishment, for
commutation is but to change the punishment assessed to a less punishment."
In State ex rel. Bottomly 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 terms '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 a 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
in icts 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 a sentence for an interval of time (4 Blackstone's Commentaries,
394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272),
a temporary suspension of execution (Butler vs. State, 97 Ind., 373).
"Few adjudicated cases are to be found in which the validity of a statute
similar to our section 12078 has been determined; but the same objections have
been urged against parole statutes which vest the power to parole in persons
other than those to whom the power of pardon is granted, and these statutes have
been upheld quite uniformly, as a reference to the numerous cases cited in the
notes to Woods vs. State (130 Tenn., 100; 169 S. W., 558, reported in L. R. A.,
1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)"
We conclude that the Probation Act does not con ict 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
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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 legislature power?
Under our 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 unicameral National Assembly by the
Constitution (Art. 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 changed. The power to whose
judgment, wisdom, and patriotism this high prerogative has been intrusted cannot
relieve itself of the responsibility 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 t to con de 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 in exible. It admits of exceptions. An exception 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
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authorities, and general affairs by the central authority; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation of
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 prescribe 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
empowered 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 (Paci c States Tel. & Tel. Co. vs. Oregon [1912], 223 U.
S., 118; 56 Law. ed., 377; 32 Sup. Ct. Rep., 224), and as the constitutionality of such
laws has been looked upon with favor by certain progressive courts, the sting of the
decisions of the more conservative courts has been pretty well drawn. (Opinions of the
Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland
[1910], 57 Ore., 454; 111 Pac., 379; 112 Pac., 602; 37 L. R. A. [N. S.], 332; Paci c 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 x within speci ed
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 prescribe, 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 is section 11 which reads as follows:
"This Act shall apply only in those provinces in which the respective
provincial boards have provided for the sale of a probation officer at rates not
lower than those now provided for provincial fiscals. Said probation officers shall
be appointed by the Secretary of Justice and shall be subject to the direction of
the Probation Office." (Italics ours.)
In testing whether a statute constitutes 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
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
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Governor-General, in his discretion, to issue a proclamation xing 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 lled 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 purposes of the 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 o cers 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 su ciency thereof — in the statute, to aid the
delegate in exercising the granted discretion. In some cases, it is held that the standard
is su cient; in others that it is insu cient; 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 de nite standard by which the administrative o cer 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 xed by the Act? We do not nd any and none has been
pointed to us by the respondents. The probation Act does not, by the force of any of its
provisions, x 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 of the Act,
the legislature does seemingly on its own authority extend the bene ts 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 a 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 o cer. 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 rst 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 decisions of this court in Municipality of Cardona vs.
Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of
Mindoro ([1919], 39 Phil., 660), and Cruz vs. Youngberg ([1931], 56 Phil., 234). In
the rst of these cases, this court sustained the validity of a law conferring upon
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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 foreign cattle, such
prohibition to be raised "if the conditions of the country make this advisable or if
disease 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 o cials of rules and regulations to carry into effect the provisions of a
law. If we were, recurrence to our own decisions would be su cient. (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 contended, 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 States 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 (P ffner, 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 nds 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 is its duty to do, determines that, under given circumstances, certain
executive or administrative action is to be taken, and that, under other circumstances,
different or no action at all is to be taken. What is thus left to the administrative o cial
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
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States, 2nd ed., Vol. III, p. 1637.) In Miller vs. Mayer, etc., of New York ([1883], 109 U. S.,
385; 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The e ciency 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, 358.) The legislature, then, may
provide that a law shall take effect upon the happening of future speci ed
contingencies leaving to some other person or body the power to determine when the
speci ed contingency has arisen. But, in the case at bar, the legislature has not made
the operation of the Probation Act contingent upon speci ed 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 boards. The discretion vested
is arbitrary because it is absolute and unlimited. A provincial board need not investigate
conditions or nd any fact, or await the happening of any speci ed 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 or have any reason
whatsoever for refusing or failing to appropriate any funds for the salary of a probation
o cer. This is a matter which rests 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 o cers 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 speci ed contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than the 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
jurisdictions, constitutions provide 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 rst 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 rst
article in the claim or declaration of rights contained in the statute is, that the
exercise of such power, by regal authority without consent of parliament, is illegal.
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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 any 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 rst 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 any 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 its 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 speci ed length of time, and
thereupon the act should become inoperative in such county for the period speci ed 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 in force 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 urged before us that the power then to be
exercised by the court is strictly legislative power, which under our constitution, cannot
be delegated to that tribunal or to any other body of men in the state. In the present
case, the question is not presented in the abstract; for the county court of Saline
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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 many jurisdictions 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 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
unquali ed 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 o cers, 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 is 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. Gaz., 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 provision of our Bill
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of Rights which prohibits the denial to any person of the equal protection of the laws
(Art. III, sec. 1, subsec. 1, Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the
three grand departments of our government and on the subordinate instrumentalities
and subdivisions thereof, and on many constitutional powers, like the police power,
taxation and eminent domain. The equal protection of the 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 is 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 is prohibited. But classi cation on a reasonable basis, and not 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
classi cation, however, to be reasonable must be based on substantial distinctions
which make real differences; it must be germane to the purposes of the law; it must not
be limited to existing conditions only, and must apply equally to each member of the
class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A.,
649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150;
Lindsley vs. Natural Carbonic Gas Co. [1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31
Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917],
242 U. S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene
[1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax
vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to ow 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 o cer, 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 bene ts of probation in one province
while another person similarly situated in another province would be denied those same
bene ts. 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
o cers 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
a rmative 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 bene ts 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 o cer — which is the situation now — and, also, if we accept the contention
that, for the purposes 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 a probation o cer. These different situations suggested show, indeed,
that while inequality may result in the application of the law and in the conferment of the
bene ts therein provided, inequality is not in all cases the necessary result. But
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whatever may be the case, it is clear that 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 courts 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 denies equal protection and 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 prohibition. (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., 191; Sunday Lake Iron Co. vs. Wake eld
[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 a 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 the other provinces, but one province may appropriate for the
salary of a probation officer of a given year — and have probation during that year — and
thereafter decline to make further appropriation, and have no probation in 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 rst instance of the City of Manila, the
defendant . . . shall not be entitled as of right to a preliminary examination in any case
where the prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . .." Upon the other hand, an
analysis of the arguments and the decision indicates that the investigation by the
prosecuting attorney — although not in the form had in the provinces — was considered
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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 in 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 nal judgments of any circuit court, except those in
certain counties for which counties the constitution establishes a separate court of
appeals called the 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 the 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 a statute is void, as repugnant to the Organic Law, while
another part is valid, the valid portion, if separable from the invalid, may stand
and be enforced. But in order to do this, the valid portion must be so far
independent of the invalid portion that it is fair to presume that the Legislature
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 e cacy 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 have provided for the
salaries of probation o cers 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
suggestion but for the fact that said section is, in our opinion, so inseparably linked with
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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 bene t to a large number of
people who may be deserving of the intended bene cial results 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
a rmative action of the different provincial boards through appropriation of the
salaries for probation o cers at rates not lower than those provided for provincial
scals. Without such action on the part of the various boards, no probation o cers
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 how — appropriates the necessary
fund for the salary of a probation o cer, probation under Act No. 4221 would be
illusory. There can be no probation without a probation o cer. Neither can there be a
probation officer without a probation system.
Section 2 of the Act provides that the probation o cer shall supervise and visit
the probationer. Every probation o cer is given, as to the persons placed in probation
under his care, the powers of a police o cer. It is the duty of probation o cers 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 o cer as directed by the court or
probation officers;
"(d) Shall permit the probation o cer 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;
"(h) Shall make reparation or restitution to the aggrieved parties for
actual damages or losses caused by his offense;
"(i) Shall support his wife and children;
"(j) Shall comply with such orders as the court may from time to time
make; and
"(k) 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 o cer 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 o cer and appropriate nding of the court that
the probationer has complied with the conditions of probation that probation may be
de nitely terminated and the probationer nally discharged from supervision. Under
section 5, if the court nds that there is non-compliance with said conditions, as
reported by the probation o cer, 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 o cers: "It shall be the
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duty of every probation o cer 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 the 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; to make
such reports 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 o cer and as the court or judge may direct. The probation
o cers provided for in this Act may act as parole o cers 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 o cer of persons released
on parole under Act Numbered Forty-one Hundred and Three, without any additional
compensation."
It is argued, however, that even without section 11 probation o cers may be
appointed in the provinces under section 10 of the Act which provides as follows:
"There is hereby created in the Department of Justice and subject to its
supervision and control, a Probation O ce under the direction of a Chief
Probation O cer to be appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four thousand eight hundred
pesos per annum. To carry out the purposes of this Act, there is hereby
appropriated out of any funds in the Insular Treasury not otherwise appropriated,
the sum of fty thousand pesos to be disbursed by the Secretary of Justice, who
is hereby authorized to appoint probation o cers and the administrative
personnel of the probation o ce under civil service regulations from among
those who possess the quali cations, training and experience prescribed by the
Bureau of Civil Service, and shall x the compensation of such probation o cers
and administrative personnel until such positions shall have been included in the
Appropriation Act."
But the probation o cers and the administrative personnel referred to in the
foregoing section are clearly not those probation o cers required to be appointed for
the provinces under section 11. It may be said, reddendo singula singulis, that the
probation o cers referred to in section 10 above-quoted are to act as such, not in the
various provinces, but in the central o ce known as the Probation O ce established in
the Department of Justice, under the supervision of a Chief Probation O cer. When the
law provides that "the probation o cer" shall investigated and make reports to the
court (secs. 1 and 4); that "the probation o cer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probation
o cer" (sec. 3, par. c.), shall allow "the probation o cer" to visit him (sec. 3, par. d),
shall truthfully answer any reasonable inquiries on the part of "the probation o cer"
concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the
probation o cer" in writing of the period and terms of probation (sec. 3, last par.), it
means the probation o cer who is in charge of a particular probationer in a particular
province. It never could have been the intention of the legislature, for instance, to
require a probationer in Batanes, to report to a probation o cer in the City of Manila, or
to require a probation o cer in Manila to visit the probationer in the said province of
Batanes, to place him under his care, to supervise his conduct, to instruct him
concerning the conditions of his probation or to perform such other functions as are
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assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation
o cers as there are provinces or groups of provinces is, of course, possible. But this
would be arguing on what the law may be or should be and not on what the law is.
Between is and ought there is a far cry. The wisdom and propriety of legislation is not
for us to pass upon. We may think a law better otherwise than it is. But much as has
been said regarding progressive interpretation and judicial legislation we decline to
amend the law. We are not permitted to read into the law matters and provisions which
are not there. Not for any purpose — not even to save a statute from the doom of
invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the
Insular Government defray the salaries of probation o cers 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 o cers in the central
o ce at Manila. These probation o cers are to receive such compensations as the
Secretary of Justice may x "until such positions shall have been included in the
Appropriation Act". It was not the intention of the legislature to empower the Secretary
of Justice to x the salaries of probation o cers 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 O ce, what would be left of the amount can
hardly be said to be su cient to pay even nominal salaries to probation o cers 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 fty thousand
pesos appropriated for the central o ce, there can be in each province, as intended, a
probation o cer with a salary not lower than that of a provincial scal. If this is 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 modern penology is a commendable system.
Probation laws have been enacted, here and in other countries, to permit what modern
criminologists call the "individualization of 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 convict 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 bene t 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
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 the analysis of the legal
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principles involved we have inclined to adopt the line of action which in our opinion, is
supported by better reasoned authorities and is more conducive to the general welfare.
(Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the con ict of
authorities, we have declined to be bound by certain adjudicated cases brought to our
attention, except where the point or the 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 a state of the American Union or of the District of
Columbia with reference to the Federal Government of the. United States is not the
situation of a 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 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 environments.
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.

Separate Opinions
VILLA-REAL and ABAD SANTOS , J., concurring:

We concur in the result.

Footnotes
1. 35 Off. Gaz., 738. See also Resolutions of December 17, 1935.

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