2. people v vera

8/6/2019 2. People v Vera

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EN BANC

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

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKINGCORPORATION Petitioners , vs. JOSE O. VERA, Judge . of the Court of First Instance of Manila, and

MARIANO CU UNJIENG, Respondents .

LAUREL, J.: chanrobles virtual law library

This is an original action instituted in this court on August 19, 1937, for the issuance of the writof certiorari and of prohibition to the Court of First Instance of Manila so that this court may review theactuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of thePhilippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendantMariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibit thesaid Court of First Instance from taking any further action or entertaining further the aforementionedapplication for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed toprison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No.41200). 1 chanrobles virtual law library

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation,are respectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is oneof 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 ofthis court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of theCourt of First Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng forprobation in the aforesaid criminal case.chanroblesvirtualawlibrary chanrobles virtual law library

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila onOctober 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the caseas private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both inthe length of time spent by the court as well as in the volume in the testimony and the bulk of the exhibitspresented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of convictionsentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and twomonths of prision correccional to eight years of prision mayor, to pay the costs and with reservation of civilaction to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the court,

on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six monthsof prision correccional to seven years, six months and twenty-seven days of prision mayor , but affirmedthe judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration and foursuccessive motions for new trial which were denied on December 17, 1935, and final judgment wasaccordingly entered on December 18, 1935. The defendant thereupon sought to have the case elevatedon 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 filedby the defendant for leave to file a second alternative motion for reconsideration or new trial andthereafter remanded the case to the court of origin for execution of the

judgment.chanroblesvirtualawlibrary chanrobles virtual law library



The instant proceedings have to do with the application for probation filed by the herein respondentMariano 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 hispetition, inter alia , that he is innocent of the crime of which he was convicted, that he has no criminalrecord and that he would observe good conduct in the future. The Court of First Instance of Manila, JudgePedro Tuason presiding, referred the application for probation of the Insular Probation Office whichrecommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila,seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5,1937.chanroblesvirtualawlibrary chanrobles virtual law library

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

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that"las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todoslos hechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that theherein respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he standsconvicted by this court in G.R. No. 41200, but denying the latter's petition for probation for the reasonthat:

. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que sehan 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 unsistema de probacion que permite atisbar en los procedimientos ordinarios de una causa criminalperturbando la quietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusionesenteramente differentes, en menoscabo del interes publico que demanda el respeto de las leyes y delveredicto judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to theresolution denying probation and a notice of intention to file a motion for reconsideration. An alternativemotion for reconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented byan additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set forhearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondentMariano Cu Unjieng because a motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whosesignature appears in the aforesaid motion subsequently filed a petition for leave to withdraw hisappearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae wascirculated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and thathe signed the same "without mature deliberation and purely as a matter of courtesy to the person whoinvited me (him)." chanrobles virtual law library

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of anorder of execution of the judgment of this court in said case and forthwith to commit the hereinrespondent Mariano Cu Unjieng to jail in obedience to said

judgment.chanroblesvirtualawlibrary chanrobles virtual law library



On August 7, 1937, the private prosecution filed its opposition to the motion for leave to interveneas amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events,said motion should be denied with respect to certain attorneys signing the same who were members ofthe legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondentJudge 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 Cityof Manila moved for the hearing of his motion for execution of judgment in preference to the motion forleave to intervene asamici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for thepostponement of the hearing of both motions. The respondent judge thereupon set the hearing of themotion for execution on August 21, 1937, but proceeded to consider the motion for leave to interveneas amici curiae as in order. Evidence as to the circumstances under which said motion for leave tointervene 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 towhat 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 imposedby this Honorable Court on him, exposing the courts to criticism and ridicule because of the apparentinability of the judicial machinery to make effective a final judgment of this court imposed on thedefendant Mariano Cu Unjieng." chanrobles virtual law library

The scheduled hearing before the trial court was accordingly suspended upon the issuance of atemporary restraining order by this court on August 21, 1937.chanroblesvirtualawlibrary chanrobles virtuallaw library

To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, hereinpetitioners 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 underprobation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to theprovinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like theCity of Manila.chanroblesvirtualawlibrary chanrobles virtual law library

(2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of aspecial provision, the term "province" may be construed to include the City of Manila for the purpose ofgiving effect to laws of general application, it is also true that Act No. 4221 is not a law of generalapplication because it is made to apply only to those provinces in which the respective provincial boardsshall have provided for the salary of a probation officer.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicableto it because it has provided for the salary of a probation officer as required by section 11 thereof; it beingimmaterial that there is an Insular Probation Officer will ing to act for the City of Manila, said ProbationOfficer provided for in section 10 of Act No. 4221 being different and distinct from the Probation Officerprovided for in section 11 of the same Act.

II. Because even if the respondent judge originally had jurisdiction to entertain the application forprobation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excessthereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano CuUnjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng'sapplication for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting ordenying of applications for probation.chanroblesvirtualawlibrary chanrobles virtual law library



(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, itbecame final and executory at the moment of its rendition.chanroblesvirtualawlibrary chanrobles virtuallaw library

(3) No right on appeal exists in such cases.chanroblesvirtualawlibrary chanrobles virtual law library

(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change thesame.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime forwhich he was convicted by final judgment of this court, which finding is not only presumptuous but withoutfoundation in fact and in law, and is furthermore in contempt of this court and a violation of therespondent's oath of office as ad interim judge of first instance.chanroblesvirtualawlibrary chanroblesvirtual law library

IV. Because the respondent judge has violated and continues to violate his duty, which becameimperative when he issued his order of June 28, 1937, denying the application for probation, to commithis co-respondent to jail.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary courseof law.chanroblesvirtualawlibrary chanrobles virtual law library

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai BankingCorporation further contends that Act No. 4221 of the Philippine Legislature providing for a system ofprobation for persons eighteen years of age or over who are convicted of crime, is unconstitutionalbecause it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippinesguaranteeing equal protection of the laws because it confers upon the provincial board of its province theabsolute discretion to make said law operative or otherwise in their respective provinces, because itconstitutes an unlawful and improper delegation to the provincial boards of the several provinces of thelegislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution(section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards,in contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to

enlarge the powers of the Court of First Instance of different provinces without uniformity. In anothersupplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of thepetitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by otherpetitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6,1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 isan encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. OnOctober 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 notonly encroaches upon the pardoning power to the executive, but also constitute an unwarranteddelegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937, twomemorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the Peopleof the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai BankingCorporation, one sustaining the power of the state to impugn the validity of its own laws and the othercontending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented.

Another joint memorandum was filed by the same persons on the same day, October 9, 1937, allegingthat Act No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes anunlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth isnot estopped from questioning the validity of its laws; that the private prosecution may intervene inprobation proceedings and may attack the probation law as unconstitutional; and that this court may passupon the constitutional question in prohibition proceedings.chanroblesvirtualawlibrary chanrobles virtuallaw library



Respondents in their answer dated August 31, 1937, as well as in their oral argument andmemorandums, challenge each and every one of the foregoing proposition raised by thepetitioners.chanroblesvirtualawlibrary chanrobles virtual law library

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the issuance of the writofcertiorari or of prohibition.chanroblesvirtualawlibrary chanrobles virtual law library

(2) That the aforesaid petition is premature because the remedy sought by the petitioners is the verysame remedy prayed for by them before the trial court and was still pending resolution before the trialcourt when the present petition was filed with this court.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

(3) That the petitioners having themselves raised the question as to the execution of judgment before thetrial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that itsresolution denying probation is unappealable.chanroblesvirtualawlibrary chanrobles virtual law library

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to

decide the question as to whether or not the execution will lie, this court nevertheless cannot exercisesaid jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motion ofherein petitioners themselves.chanroblesvirtualawlibrary chanrobles virtual law library

(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over the case and elevate the proceedings to this court, should not be tolerated because itimpairs the authority and dignity of the trial court which court while sitting in the probation cases is "acourt of limited jurisdiction but of great dignity." chanrobles virtual law library

(6) That under the supposition that this court has jurisdiction to resolve the question submitted to andpending resolution by the trial court, the present action would not lie because the resolution of the trialcourt denying probation is appealable; for although the Probation Law does not specifically provide thatan applicant for probation may appeal from a resolution of the Court of First Instance denying probation,still it is a general rule in this jurisdiction that a final order, resolution or decision of an inferior court isappealable to the superior court.chanroblesvirtualawlibrary chanrobles virtual law library

(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng beingappealable, the same had not become final and executory for the reason that the said respondent hadfiled an alternative motion for reconsideration and new trial within the requisite period of fifteen days,which motion the trial court was able to resolve in view of the restraining order improvidently anderroneously issued by this court.chanroblesvirtualawlibrary chanrobles virtual law library

(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial courtdenying probation is not final and unappealable when he presented his answer to the motion forreconsideration and agreed to the postponement of the hearing of the said

motion.chanroblesvirtualawlibrary chanrobles virtual law library

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



(10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that thispower to alter or modify an order or resolution is inherent in the courts and may be exercise eithermotu proprio or upon petition of the proper party, the petition in the latter case taking the form of a motion forreconsideration.chanroblesvirtualawlibrary chanrobles virtual law library

(11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, saidcourt cannot order execution of the same while it is on appeal, for then the appeal would not be availingbecause the doors of probation will be closed from the moment the accused commences to serve hissentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221is constitutional because, contrary to the allegations of the petitioners, it does not constitute an unduedelegation of legislative power, does not infringe the equal protection clause of the Constitution, and doesnot encroach upon the pardoning power of the Executive. In an additional memorandum filed on the samedate, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free fromconstitutional objections and contend, in addition, that the private prosecution may not intervene inprobation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and theSolicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot be

attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondentMariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of thiscourt and filed anew on November 5, 1937. This memorandum elaborates on some of the pointsraised by the respondents and refutes those brought up by thepetitioners.chanroblesvirtualawlibrary chanrobles virtual law library

In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted thatthe court below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng andin denying said application assumed the task not only of considering the merits of the application, but ofpassing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by thiscourt. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look intothe circumstances attending the commission of the offense, this does not authorize it to reverse the

findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admissionreliance was merely had on the printed briefs, averments, and pleadings of the parties. As alreadyobserved by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequentcases, "if each and every Court of First Instance could enjoy the privilege of overruling decisions of theSupreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modestyof inferior courts demands conscious realization of the position that they occupy in the interrelation andoperation of the intergrated judicial system of the nation.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

After threshing carefully the multifarious issues raised by both counsel for the petitioners and therespondents, this court prefers to cut the Gordian knot and take up at once the two fundamentalquestions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properlyraised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional.Considerations of these issues will involve a discussion of certain incidental questions raised by theparties.chanroblesvirtualawlibrary chanrobles virtual law library

To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It isa well-settled rule that the constitutionality of an act of the legislature will not be determined by the courtsunless that question is properly raised and presented inappropriate cases and is necessary to adetermination of the case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirrvs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782,783.) chanrobles virtual law library



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 theordinary 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 maybe raised by the petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and inGovernment of the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs. Government of thePhilippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the legislatureunconstitutional in an action ofquo warranto brought in the name of the Government of the Philippines. Ithas 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 thecontrary; 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 preliminaryinjunction 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 thepresent one, an original action forcertiorari and prohibition. The constitutionality of Act No. 2972, popularlyknown as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutionalissue was not met squarely by the respondent in a demurrer. A point was raised "relating to the propriety

of the constitutional question being decided in original proceedings in prohibition." This court decided totake up the constitutional question and, with two justices dissenting, held that Act No. 2972 wasconstitutional. The case was elevated on writ of certiorari to the Supreme Court of the United Stateswhich 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 isgranted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons,and original jurisdiction over courts of first instance, when such courts are exercising functions without orin excess of their jurisdiction. It has been held by that court that the question of the validity of the criminalstatute must usually be raised by a defendant in the trial court and be carried regularly in review to theSupreme 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 amultiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the act's validitypromptly before it and decide in the interest of the orderly administration of justice. The court relied byanalogy upon the cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D,545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755;L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdictionwas raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and bothparties ask a decision on the merits. In view of the broad powers in prohibition granted to that court underthe 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 anddirected to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction

with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule,although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferior courthas jurisdiction independent of the statute the constitutionality of which is questioned, because in suchcases the interior court having jurisdiction may itself determine the constitutionality of the statute, and itsdecision may be subject to review, and consequently the complainant in such cases ordinarily hasadequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute . (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs.



Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields[1837], 5 Dana, 19; 30 Am. Dec., 669.) chanrobles virtual law library

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221which prescribes in detailed manner the procedure for granting probation to accused persons after theirconviction has become final and before they have served their sentence. It is true that at common law the

authority of the courts to suspend temporarily the execution of the sentence is recognized and, accordingto a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the poweris inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel[1909], 156 Mich., 557; 121 N. W., 497; People ex rel . Forsyth vs. Court of Session [1894], 141 N. Y.,288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States ([1916],242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), theSupreme Court of the United States expressed the opinion that under the common law the power of thecourt was limited to temporary suspension, and brushed aside the contention as to inherent judicial powersaying, through Chief Justice White:

Indisputably under our constitutional system the right to try offenses against the criminal laws and uponconviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, inexerting 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 theseconcessions afford no ground for the contention as to power here made, since it must rest upon theproposition that the power to enforce begets inherently a discretion to permanently refuse to do so. Andthe effect of the proposition urged upon the distribution of powers made by the Constitution will becomeapparent when it is observed that indisputable also is it that the authority to define and fix the punishmentfor crime is legislative and includes the right in advance to bring within judicial discretion, for the purposeof executing the statute, elements of consideration which would be otherwise beyond the scope of judicialauthority, and that the right to relieve from the punishment, fixed by law and ascertained according to themethods 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 thepower 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 thepower of the courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct,therefore, when they argue that a Court of First Instance sitting in probation proceedings is a court oflimited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of thePhilippine Legislature.chanroblesvirtualawlibrary chanrobles virtual law library

It is, of course, true that the constitutionality of a statute will not be considered on application forprohibition where the question has not been properly brought to the attention of the court by objection ofsome 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 beensquarely presented not only before this court by the petitioners but also before the trial court by theprivate 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 whoserights are affected by the statute, may not raise said question. The respondent judge cited Cooley onConstitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. EssexCounty ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will notconsider any attack made on the constitutionality of a statute by one who has no interest in defeating itbecause his rights are not affected by its operation. The respondent judge further stated that it maynot motu proprio take up the constitutional question and, agreeing with Cooley that "the power to declarea legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, willshrink from exercising in any case where he can conscientiously and with due regard to duty and officialoath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on theassumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that the



constitutional question was raised before it, it refused to consider the question solely because it was notraised by a proper party. Respondents herein reiterates this view. The argument is advanced that theprivate prosecution has no personality to appear in the hearing of the application for probation ofdefendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, andhence 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 judicialdecision, it has been held that since the decree pronounced by a court without jurisdiction is void, wherethe jurisdiction of the court depends on the validity of the statute in question, the issue of theconstitutionality will be considered on its being brought to the attention of the court by persons interestedin the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that theissue was not properly raised in the court below by the proper party, it does not follow that the issue maynot be here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, thequestion of constitutionality must be raised at the earliest opportunity, so that if not raised by thepleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will notconsidered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exerciseof sounds discretion, may determine the time when a question affecting the constitutionality of a statuteshould be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there isa very sharp conflict of authorities, it is said that the question may be raised for the first time at any stageof the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been

held that it is the duty of a court to pass on the constitutional question, though raised for the first time onappeal, 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], 188Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by anappellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911],175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised forthe first time before this court in these proceedings, we turn again and point with emphasis to the caseof Yu Cong Eng vs. Trinidad, supra . And on the hypotheses that the Hongkong & Shanghai BankingCorporation, represented by the private prosecution, is not the proper party to raise the constitutionalquestion here - a point we do not now have to decide - we are of the opinion that the People of thePhilippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a properparty 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 willsustained, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 reallyviolates the constitution, the People of the Philippines, in whose name the present action is brought, hasa substantial interest in having it set aside. Of grater import than the damage caused by the illegalexpenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement ofan invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. InGovernment 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 actof the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. InAttorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State ofMichigan, through its Attorney General, instituted quo warranto proceedings to test the right of therespondents to renew a mining corporation, alleging that the statute under which the respondents basetheir right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief

law officer of the state to question the constitutionality of the statute was though, as a general rule, onlythose who are parties to a suit may question the constitutionality of a statute involved in a judicialdecision, it has been held that since the decree pronounced by a court without jurisdiction in void, wherethe jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionalitywill be considered on its being brought to the attention of the court by persons interested in the effect tobegin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was notproperly raised in the court below by the proper party, it does not follow that the issue may not be hereraised in an original action of certiorari and prohibition. It is true that, as a general rule, the question ofconstitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarilyit may not be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12



C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But wemust state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, maydetermine the time when a question affecting the constitutionality of a statute should be presented. (In reWoolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict ofauthorities, it is said that the question may be raised for the first time at any state of the proceedings,either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is theduty of a court to pass on the constitutional question, though raised for first time on appeal, if it appearsthat 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 anytime, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S.,870.) As to the power of this court to consider the constitutional question raised for the first time beforethis 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, representedby the private prosecution, is not the proper party to raise the constitutional question here - a point we donot now have to decide - we are of the opinion that the People of the Philippines, represented by theSolicitor-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 andsubstantial 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 thePhilippines, 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 woundinflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well -settled rulethat 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], 277U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an actioninstituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73Mich., 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 itimpaired the obligation of contracts. The capacity of the chief law officer of the state to question theconstitutionality 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 bytheir representatives; that to an accusation by the people of Michigan of usurpation their government, astatute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if thestatute relied on in justification is unconstitutional, it is statute only in form, and lacks the force of law, andis of no more saving effect to justify action under it than if it had never been enacted. The constitution isthe supreme law, and to its behests the courts, the legislature, and the people must bow . . . Thelegislature and the respondents are not the only parties in interest upon such constitutional questions. Aswas remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by anunconstitutional act of the legislature: "The people have a deep and vested interest in maintaining all theconstitutional 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 broughtby the Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of thequestion 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 alwaysinterested 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 anindividual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518[57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.)

Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or countyattorney, may exercise his bet judgment as to what sort of action he will bring to have the matter

determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac.,1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533;108 Pac., 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. vs.City of Neodesha, 3 Kan. App., 319; 45 Pac., 122).

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

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 threedecisions are cited, viz.: State ex rel . Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La.Ann., 1222); State ex rel . Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6So., 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 hefinds if in conflict with one which it is his duty to enforce. In State ex rel . Hall, District Attorney, vs. Judge,etc., the ruling was the judge should not, merely because he believed a certain statute to beunconstitutional forbid the district attorney to file a bill of information charging a person with a violation ofthe statute. In other words, a judge should not judicially declare a statute unconstitutional until thequestion of constitutionality is tendered for decision, and unless it must be decided in order to determinethe right of a party litigant. State ex rel . Nicholls, Governor, etc., is authority for the proposition merely thatan officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon theground 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 theproposition merely that executive officers, e.g., the state auditor and state treasurer, should not decline toperform ministerial duties imposed upon them by a statute, on the ground that they believe the statute isunconstitutional.chanroblesvirtualawlibrary chanrobles virtual law library

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support theConstitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other,or one which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is hisduty 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 freefrom 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 oppositedirection. In fact, they appear to have proceeded on the assumption that the rule as stated is sound butthat it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of thePeople of the Philippines, one of the petitioners herein, the principal reasons being that the validity beforethis court, that the City Fiscal is estopped from attacking the validity of the Act and, not authorizedchallenge the validity of the Act in its application outside said city. (Additional memorandum ofrespondents, October 23, 1937, pp. 8,. 10, 17 and 23.) chanrobles virtual law library

The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has notbeen 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 estoppedfrom nor assailing its validity. For courts will pass upon a constitutional questions only when presentedbefore it in bona fide cases for determination, and the fact that the question has not been raised before isnot a valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relyingupon the statute and treating it as valid until it is held void by the courts in propercases.chanroblesvirtualawlibrary chanrobles virtual law library

It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary tothe resolution of the instant case. For, ". . . while the court will meet the question with firmness, where itsdecision is indispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, towaive 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 heldthat the determination of a constitutional question is necessary whenever it is essential to the decision ofthe 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]; Hessevs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs.Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely ona statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins.Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt thatthe respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now beingassailed.chanroblesvirtualawlibrary chanrobles virtual law library

Apart from the foregoing considerations, that court will also take cognizance of the fact that the ProbationAct is a new addition to our statute books and its validity has never before been passed upon by thecourts; that may persons accused and convicted of crime in the City of Manila have applied for probation;that some of them are already on probation; that more people will likely take advantage of the ProbationAct in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about fouryears since his first conviction. All wait the decision of this court on the constitutional question.Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity ofsuits, 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 andFajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra , an analogous situationconfronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousandmerchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yetinterpreted by the courts, in the interest of the public welfare and for the advancement of public policy, wehave determined to overrule the defense of want of jurisdiction in order that we may decide the mainissue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our rulingon this point was sustained by the Supreme Court of the United States. A more binding authority insupport of the view we have taken can not be found.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has beenproperly raised. Now for the main inquiry: Is the Act unconstitutional? chanrobles virtual law library

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution.This court, by clear implication from the provisions of section 2, subsection 1, and section 10, of ArticleVIII of the Constitution, may declare an act of the national legislature invalid because in conflict with thefundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it willnot hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of theessence of judicial duty.chanroblesvirtualawlibrary chanrobles virtual law library

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubtsshould 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 theConstitution rests not on the courts alone but on the legislature as well. "The question of the validity ofevery statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson[1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of theexecutive. The members of the Legislature and the Chief Executive have taken an oath to support theConstitution and it must be presumed that they have been true to this oath and that in enacting andsanctioning a particular law they did not intend to violate the Constitution. The courts cannot butcautiously exercise its power to overturn the solemn declarations of two of the three grand departments ofthe governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the

judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an electiveChief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitutionexcept in a clear case. This is a proposition too plain to require a citation ofauthorities.chanroblesvirtualawlibrary chanrobles virtual law library

One of the counsel for respondents, in the course of his impassioned argument, called attention to thefact that the President of the Philippines had already expressed his opinion against the constitutionality ofthe Probation Act, adverting that as to the Executive the resolution of this question was a foregoneconclusion. Counsel, however, reiterated his confidence in the integrity and independence of this court.We take notice of the fact that the President in his message dated September 1, 1937, recommended tothe National Assembly the immediate repeal of the Probation Act (No. 4221); that this message resultedin the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to certainconditions therein mentioned; but that said bil l 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 . . . unfairand very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the billreferred to, the President exercised his constitutional prerogative. He may express the reasons which hemay deem proper for taking such a step, but his reasons are not binding upon us in the determination ofactual controversies submitted for our determination. Whether or not the Executive should express or inany manner insinuate his opinion on a matter encompassed within his broad constitutional power of vetobut which happens to be at the same time pending determination in this court is a question of propriety forhim exclusively to decide or determine. Whatever opinion is expressed by him under thesecircumstances, however, cannot sway our judgment on way or another and prevent us from taking whatin our opinion is the proper course of action to take in a given case. It if is ever necessary for us to make

any vehement affirmance during this formative period of our political history, it is that we are independentof the Executive no less than of the Legislative department of our government - independent in theperformance 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 understandit.chanroblesvirtualawlibrary chanrobles virtual law library

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Actencroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation oflegislative power and (3) that it denies the equal protection of thelaws.chanroblesvirtualawlibrary chanrobles virtual law library

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force atthe time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-

General of the Philippines "the exclusive power to grant pardons and reprieves and remit fines andforfeitures". 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 aperson before the facts of the case were fully brought to light. The framers of our Constitution thought thisundesirable 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 ofthe United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not bepleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnlyheard 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 thedistinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from officeand disqualification to hold and enjoy any office of honor, trust, or profit under the Government" (Art. IX,sec. 4, Constitution of the Philippines) but extends to the whole punishment attached by law to theoffense committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment,perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of theoffense committed, together with removal from office and incapacity to hold office. (Com. vs.Lockwood, supra .) Our Constitution also makes specific mention of "commutation" and of the power of theexecutive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he maydeem proper. Amnesty may be granted by the President under the Constitution but only with theconcurrence of the National Assembly. We need not dwell at length on the significance of thesefundamental changes. It is sufficient for our purposes to state that the pardoning power has remainedessentially the same. The question is: Has the pardoning power of the Chief Executive under the JonesLaw been impaired by the Probation Act? chanrobles virtual law library

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. Theexercise 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 anylegislative restrictions, nor can like power be given by the legislature to any other officer or authority. Thecoordinate departments of government have nothing to do with the pardoning power, since no personproperly belonging to one of the departments can exercise any powers appertaining to either of the othersexcept in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . wherethe pardoning power is conferred on the executive without express or implied limitations, the grant isexclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, norinterfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If ActNo. 4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional andvoid. But does it? chanrobles virtual law library

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United Statesruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916],242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) ChiefJustice White, after an exhaustive review of the authorities, expressed the opinion of the court that underthe common law the power of the court was limited to temporary suspension and that the right to suspendsentenced absolutely and permanently was vested in the executive branch of the government and not inthe judiciary. But, the right of Congress to establish probation by statute was conceded. Said the courtthrough its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the impositionof penalties as fixed to be subject, by probation legislation or such other means as the legislative mindmay devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of anenlarged but wise discretion the infinite variations which may be presented to them for judgment,recourse must be had Congress whose legislative power on the subject is in the very nature of things

adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led theNational Probation Association and others to agitate for the enactment by Congress of a federal probationlaw. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724).This was followed by an appropriation to defray the salaries and expenses of a certain number ofprobation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p.14.) chanrobles virtual law library

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), theSupreme 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 theProbation Act of March 4, 1925 to grant him probation even though the term at which sentence wasimposed had not yet expired. In this case of Murray, the constitutionality of the probation Act was notconsidered but was assumed. The court traced the history of the Act and quoted from the report of theCommittee on the Judiciary of the United States House of Representatives (Report No. 1377, 68thCongress, 2 Session) the following statement:

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

Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, abill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciaryCommittee again favorably reported a probation bill to the House, but it was never reached for definiteaction.chanroblesvirtualawlibrary chanrobles virtual law library

If this bill is enacted into law, it will bring the policy of the Federal government with reference to itstreatment of those convicted of violations of its criminal laws in harmony with that of the states of theUnion. At the present time every state has a probation law, and in all but twelve states the law appliesboth 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 Riggsvs. 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 beenreviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality ofthe 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 applicablehere. It arose under the act we have to consider, and to it and the authorities cited therein specialreference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court ofAppeals 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 probationlaw as actually enacted in 1925, and that the constitutionality of the Act has been assumed by theSupreme Court of the United States in 1928 and consistently sustained by the inferior federal courts in anumber of earlier cases.chanroblesvirtualawlibrary chanrobles virtual law library

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legallyenact a probation law under its broad power to fix the punishment of any and all penal offenses. This

conclusion is supported by other authorities. InEx 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 defineall 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 thegeneral assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to beimposed, as to the beginning and end of the punishment and whether it should be certain orindeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, thePhilippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the



legislature has demonstrated the desire to vest in the courts - particularly the trial courts - large discretionin imposing the penalties which the law prescribes in particular cases. It is believed that justice can bestbe served by vesting this power in the courts, they being in a position to best determine the penaltieswhich an individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed torefrain from imposing a sentence merely because, taking into consideration the degree of malice and theinjury caused by the offense, the penalty provided by law is clearly excessive, the courts being allowed insuch case to submit to the Chief Executive, through the Department of Justice, such statement as it maydeem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravatingcircumstances are attendant in the commission of a crime and the law provides for a penalty composed oftwo indivisible penalties, the courts may allow such circumstances to offset one another in considerationof 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, article64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of eachperiods, in case the penalty prescribed by law contains three periods, the extent of the evil produced bythe crime. In the imposition of fines, the courts are allowed to fix any amount within the limits establishedby law, considering not only the mitigating and aggravating circumstances, but more particularly thewealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Codeprovides that "a discretionary penalty shall be imposed" upon a person under fifteen but over nine yearsof age, who has not acted without discernment, but always lower by two degrees at least than thatprescribed 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 ofthe lack of some of the conditions required to justify the same or to exempt from criminal liability in theseveral cases mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in theperiod which may be deemed proper, in view of the number and nature of the conditions of exemptionpresent 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 uponhim either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised PenalCode.) chanrobles virtual law library

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted formthe entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penaltyis not imposed when the guilty person is more than seventy years of age, or where upon appeal orrevision 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 AdministrativeCode, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a womanwithin the three years next following the date of the sentence or while she is pregnant, or upon anyperson over seventy years of age (art. 83); and when a convict shall become insane or an imbecile afterfinal sentence has been pronounced, or while he is serving his sentenced, the execution of said sentenceshall be suspended with regard to the personal penalty during the period of such insanity or imbecility(art. 79).chanroblesvirtualawlibrary chanrobles virtual law library

But the desire of the legislature to relax what might result in the undue harshness of the penal laws ismore clearly demonstrated in various other enactments, including the probation Act. There is theIndeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No.4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in imposingthe penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prison

sentence for an offenses punished by the Revised Penal Code, or its amendments, the court shallsentence the accused to an indeterminate sentence the maximum term of which shall be that which, inview of the attending circumstances, could be properly imposed under the rules of the said Code, and toa minimum which shall be within the range of the penalty next lower to that prescribed by the Code for theoffense; and if the offense is punished by any other law, the court shall sentence the accused to anindeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law andthe minimum shall not be less than the minimum term prescribed by the same." Certain classes ofconvicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has alsoenacted 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 theRevised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended byCommonwealth Act No. 99 of the National Assembly. In this Act is again manifested the intention of thelegislature to "humanize" the penal laws. It allows, in effect, the modification in particular cases of thepenalties prescribed by law by permitting the suspension of the execution of the judgment in thediscretion of the trial court, after due hearing and after investigation of the particular circumstances of theoffenses, the criminal record, if any, of the convict, and his social history. The Legislature has in realitydecreed that in certain cases no punishment at all shall be suffered by the convict as long as theconditions of probation are faithfully observed. It this be so, then, it cannot be said that the Probation Actcomes in conflict with the power of the Chief Executive to grant pardons and reprieves, because, to usethe language of the Supreme Court of New Mexico, "the element of punishment or the penalty for thecommission of a wrong, while to be declared by the courts as a judicial function under and within thelimits of law as announced by legislative acts, concerns solely the procedure and conduct of criminalcauses, 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 probationstatute against the contention that it attempted to delegate to the courts the pardoning power lodged bythe constitution in the governor alone is vested with the power to pardon after final sentence has beenimposed by the courts, the power of the courts to imposed any penalty which may be from time to timeprescribed by law and in such manner as may be defined cannot be questioned." chanrobles virtual lawlibrary

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

Other cases, however, hold contra . (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook[1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States[1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac.,831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730;300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo.,60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State[1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs.State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64Atl., 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], 20N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel . Forsyth vs. Court of Session [1894],

141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel . Sullivan vs. Flynn[1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs.Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal[1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S.E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn.,100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573;King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim.



Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall[1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs.Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel . Tingstand vs. Starwich [1922], 119 Wash.,561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities holding that thecourts may be legally authorized by the legislature to suspend sentence by the establishment of a systemof probation however characterized. State ex rel . Tingstand vs. Starwich ([1922], 119 Wash., 561; 206Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute enacted in 1921 whichprovided for the suspension of the execution of a sentence until otherwise ordered by the court, andrequired that the convicted person be placed under the charge of a parole or peace officer during the termof such suspension, on such terms as the court may determine, was held constitutional and as not givingthe court a power in violation of the constitutional provision vesting the pardoning power in the chiefexecutive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.) chanroblesvirtual law library

Probation and pardon are not coterminous; nor are they the same. They are actually district and differentfrom each other, both in origin and in nature. In People ex rel . Forsyth vs. Court of Sessions ([1894], 141N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals ofNew York said:

. . . The power to suspend sentence and the power to grant reprieves and pardons, as understood whenthe constitution was adopted, are totally distinct and different in their nature. The former was always apart of the judicial power; the latter was always a part of the executive power. The suspension of thesentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction andliability following it, and the civil disabilities, remain and become operative when judgment is rendered. Apardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releasesthe punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is asinnocent as if he had never committed the offense. It removes the penalties and disabilities, and restoreshim 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; 20Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.) chanrobles virtual law library

The framers of the federal and the state constitutions were perfectly familiar with the principles governing

the power to grant pardons, and it was conferred by these instruments upon the executive with fullknowledge of the law upon the subject, and the words of the constitution were used to express theauthority 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 notcomprehend any part of the judicial functions to suspend sentence, and it was never intended that theauthority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of thatpower in regard to its own judgments, that criminal courts has so long maintained. The two powers, sodistinct and different in their nature and character, were still left separate and distinct, the one to beexercised by the executive, and the other by the judicial department. We therefore conclude that a statutewhich, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases afterconviction, - a power inherent in such courts at common law, which was understood when the constitutionwas adopted to be an ordinary judicial function, and which, ever since its adoption, has been exercised oflegislative power under the constitution. It does not encroach, in any just sense, upon the powers of theexecutive, as they have been understood and practiced from the earliest times. (Quoted with approval in

Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, atpp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completelyexonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act,the probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of theAct provides that the probation may be definitely terminated and the probationer finally discharged fromsupervision only after the period of probation shall have been terminated and the probation officer shallhave submitted a report, and the court shall have found that the probationer has complied with the



conditions of probation. The probationer, then, during the period of probation, remains in legal custody -subject to the control of the probation officer and of the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve thesentence 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 theimprisonment and find prescribed by the criminal laws. For this reason its application is as purely a judicial act as any other sentence carrying out the law deemed applicable to the offense. The executiveact of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or rather isoutside of and above it. There is thus no conflict with the pardoning power, and no possibleunconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrassvs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon moststrongly by the petitioners as authority in support of their contention that the power to grant pardons andreprieves, having been vested exclusively upon the Chief Executive by the Jones Law, may not beconferred by the legislature upon the courts by means of probation law authorizing the indefinite judicialsuspension 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 thepower to grant pardons to persons convicted of crime, it also distinguished between suspensionssentence on the one hand, and reprieve and commutation of sentence on the other. Said the court,through Harper, J .:

That the power to suspend the sentence does not conflict with the power of the Governor to grantreprieves 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 aday certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In reBuchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. Thislaw cannot be hold in conflict with the power confiding in the Governor to grant commutations ofpunishment, for a commutations is not but to change the punishment assessed to a less punishment.

In State ex rel . Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court ofMontana had under consideration the validity of the adult probation law of the state enacted in 1913, nowfound in sections 12078-12086, Revised Codes of 1921. The court held the law valid as not impingingupon the pardoning power of the executive. In a unanimous decision penned by Justice Holloway, thecourt said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time ourConstitution was adopted, and no one of them was intended to comprehend the suspension of theexecution of the judgment as that phrase is employed in sections 12078-12086. A "pardon" is an act ofgrace, proceeding from the power intrusted with the execution of the laws which exempts the individualon whom it is bestowed from the punishment the law inflicts for a crime he has committed (United Statesvs. 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 aless penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Richvs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the withholding of thesentence 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).chanroblesvirtualawlibrary chanrobles virtual law library

Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 hasbeen determined; but the same objections have been urged against parole statutes which vest the powerto parole in persons other than those to whom the power of pardon is granted, and these statutes have



been upheld quite uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State(130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L.,524.)

We conclude that the Probation Act does not conflict with the pardoning power of the Executive. Thepardoning 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 thusplace it beyond the power of the court to order his rearrest and imprisonment. (Riggs vs. United States[1926],14 F. [2d], 5, 7.) chanrobles virtual law library

2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative power ? chanrobles virtual law library

Under the constitutional system, the powers of government are distributed among three coordinate andsubstantially independent organs: the legislative, the executive and the judicial. Each of thesedepartments of the government derives its authority from the Constitution which, in turn, is the highestexpression of popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is

supreme within its own sphere.chanroblesvirtualawlibrary chanrobles virtual law library

The power to make laws - the legislative power - is vested in a bicameral Legislature by the Jones Law(sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of thePhilippines). The Philippine Legislature or the National Assembly may not escape its duties andresponsibilities by delegating that power to any other body or authority. Any attempt to abdicate the poweris unconstitutional and void, on the principle that potestas delegata non delegare potest . This principle issaid to have originated with the glossators, was introduced into English law through a misreading ofBracton, there developed as a principle of agency, was established by Lord Coke in the English publiclaw in decisions forbidding the delegation of judicial power, and found its way into America as anenlightened principle of free government. It has since become an accepted corollary of the principle ofseparation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that ofLocke, 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 Cooleyenunciates the doctrine in the following oft-quoted language: "One of the settled maxims in constitutionallaw is, that the power conferred upon the legislature to make laws cannot be delegated by thatdepartment to any other body or authority. Where the sovereign power of the state has located theauthority, there it must remain; and by the constitutional agency alone the laws must be made until theConstitution itself is charged. The power to whose judgment, wisdom, and patriotism this high prerogativehas been intrusted cannot relieve itself of the responsibilities by choosing other agencies upon which thepower shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body forthose to which alone the people have seen fit to confide this sovereign trust." (Cooley on ConstitutionalLimitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) Thiscourt posits the doctrine "on the ethical principle that such a delegated power constitutes not only a rightbut a duty to be performed by the delegate by the instrumentality of his own judgment acting immediatelyupon the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra , atp. 330.) chanrobles virtual law library

The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. Itadmits of exceptions. An exceptions sanctioned by immemorial practice permits the central legislativebody to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle ofour system of government, that local affairs shall be managed by local authorities, and general affairs bythe central authorities; and hence while the rule is also fundamental that the power to make laws cannotbe delegated, the creation of the municipalities exercising local self government has never been held to



trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but ratheras the grant of the authority to prescribed local regulations, according to immemorial practice, subject ofcourse to the interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick,supra .) Onquite the same principle, Congress is powered to delegate legislative power to such agencies in theterritories of the United States as it may select. A territory stands in the same relation to Congress as amunicipality 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 oflegislative 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 formbecause of its adoption of the initiative and referendum has been held not to be a judicial but a politicalquestion (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet.Rep., 224), and as the constitutionality of such laws has been looked upon with favor by certainprogressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn.(Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland[1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co.vs. Oregon, supra .) Doubtless, also, legislative power may be delegated by the Constitution itself. Section14, paragraph 2, of article VI of the Constitution of the Philippines provides that "The National Assemblymay by law authorize the President, subject to such limitations and restrictions as it may impose, to fix

within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues." And section16 of the same article of the Constitution provides that "In times of war or other national emergency, theNational Assembly may by law authorize the President, for a limited period and subject to suchrestrictions as it may prescribed, to promulgate rules and regulations to carry out a declared nationalpolicy." It is beyond the scope of this decision to determine whether or not, in the absence of theforegoing constitutional provisions, the President could be authorized to exercise the powers therebyvested in him. Upon the other hand, whatever doubt may have existed has been removed by theConstitution itself.chanroblesvirtualawlibrary chanrobles virtual law library

The case before us does not fall under any of the exceptions hereinabovementioned.chanroblesvirtualawlibrary chanrobles virtual law library

The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a probation officer at rates not lower than those now provided for provincial fiscals. Saidprobation officer shall be appointed by the Secretary of Justice and shall be subject to the direction of theProbation Office. (Emphasis ours.)

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

For the purpose of Probation Act, the provincial boards may be regarded as administrative bodiesendowed with power to determine when the Act should take effect in their respective provinces. They arethe agents or delegates of the legislature in this respect. The rules governing delegation of legislativepower to administrative and executive officers are applicable or are at least indicative of the rule which



should be here adopted. An examination of a variety of cases on delegation of power to administrativebodies will show that the ratio decidendi is at variance but, it can be broadly asserted that the rationalerevolves around the presence or absence of a standard or rule of action - or the sufficiency thereof - inthe statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that thestandard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, anact of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standardby which the administrative officer or board may be guided in the exercise of the discretionary powersdelegated 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; 107A.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 determinewhether or not the Probation Act shall apply in their respective provinces? What standards are fixed bythe Act? We do not find any and none has been pointed to us by the respondents. The probation Actdoes not, by the force of any of its provisions, fix and impose upon the provincial boards any standard orguide in the exercise of their discretionary power. What is granted, if we may use the language of JusticeCardozo in the recent case of Schecter, supra , is a "roving commission" which enables the provincialboards to exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on itsown authority extend the benefits of the Probation Act to the provinces but in reality leaves the entirematter for the various provincial boards to determine. In other words, the provincial boards of the variousprovinces 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 theprovincial boards. If the provincial board does not wish to have the Act applied in its province, all that ithas to do is to decline to appropriate the needed amount for the salary of a probation officer. The plainlanguage of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrenderof legislative power to the provincial boards.chanroblesvirtualawlibrary chanrobles virtual law library

"The true distinction", says Judge Ranney, "is between the delegation of power to make the law, whichnecessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to itsexecution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter novalid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St.,77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the decision ofthis court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs.Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the

first of these cases, this court sustained the validity of the law conferring upon the Governor-Generalauthority to adjust provincial and municipal boundaries. In the second case, this court held it lawful for thelegislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to beselected by the provincial governor and approved by the provincial board. In the third case, it was heldproper for the legislature to vest in the Governor-General authority to suspend or not, at his discretion, theprohibition of the importation of the foreign cattle, such prohibition to be raised "if the conditions of thecountry make this advisable or if deceased among foreign cattle has ceased to be a menace to theagriculture and livestock of the lands." chanrobles virtual law library

It should be observed that in the case at bar we are not concerned with the simple transference of detailsof execution or the promulgation by executive or administrative officials of rules and regulations to carryinto effect the provisions of a law. If we were, recurrence to our own decisions would be sufficient. (U. S.vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs

[1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) chanrobles virtual law library

It is connected, however, that a legislative act may be made to the effect as law after it leaves the handsof the legislature. It is true that laws may be made effective on certain contingencies, as by proclamationof the executive or the adoption by the people of a particular community (6 R. C. L., 116, 170-172;Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1;6 Law. ed., 253), the Supreme Court of the United State ruled that the legislature may delegate a powernot 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 bedelegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions asthe basis of the taking into effect of a law. That is a mental process common to all branches of thegovernment. (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 complexityarising from social and economic forces at work in this modern industrial age (Pfiffner, PublicAdministration [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 findsrestatement in Prof. Willoughby's treatise on the Constitution of the United States in the followinglanguage - speaking of declaration of legislative power to administrative agencies: "The principle whichpermits the legislature to provide that the administrative agent may determine when the circumstancesare such as require the application of a law is defended upon the ground that at the time this authority isgranted, the rule of public policy, which is the essence of the legislative act, is determined by thelegislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances,certain executive or administrative action is to be taken, and that, under other circumstances, different ofno action at all is to be taken. What is thus left to the administrative official is not the legislativedetermination 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 theConstitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883],109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as adeclaration of legislative will must, of course, come from Congress, but the ascertainment of thecontingency upon which the Act shall take effect may be left to such agencies as it may designate." (See,also , 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.)The legislature, then may provide that a contingencies leaving to some other person or body the power todetermine when the specified contingencies has arisen. But, in the case at bar, the legislature has notmade the operation of the Prohibition Act contingent upon specified facts or conditions to be ascertainedby the provincial board. It leaves, as we have already said, the entire operation or non-operation of thelaw upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. Aprovincial board need not investigate conditions or find any fact, or await the happening of any specifiedcontingency. It is bound by no rule, - limited by no principle of expendiency announced by the legislature.

It may take into consideration certain facts or conditions; and, again, it may not. It may have any purposeor no purpose at all. It need not give any reason whatsoever for refusing or failing to appropriate anyfunds for the salary of a probation officer. This is a matter which rest entirely at its pleasure. The fact thatat some future time - we cannot say when - the provincial boards may appropriate funds for the salariesof probation officers and thus put the law into operation in the various provinces will not save the statute.The time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincialboards and not upon the happening of a certain specified contingency, or upon the ascertainment ofcertain facts or conditions by a person or body other than legislatureitself.chanroblesvirtualawlibrary chanrobles virtual law library

The various provincial boards are, in practical effect, endowed with the power of suspending theoperation of the Probation Law in their respective provinces. In some jurisdiction, constitutions providedthat 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 exceptby the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation ofthe laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions ofthis sort do not confer absolute power of suspension upon the legislature. While it may be undoubted thatthe legislature may suspend a law, or the execution or operation of a law, a law may not be suspended asto certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, andcannot 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 declaredthat the power of suspending the laws, or the execution of the laws, ought never to be exercised but bythe legislature, or by authority derived from it, to be exercised in such particular cases only as thelegislature shall expressly provide for. Many of the articles in that declaration of rights were adopted fromthe Magna Charta of England, and from the bill of rights passed in the reign of William and Mary. The billof rights contains an enumeration of the oppressive acts of James II, tending to subvert and extirpate theprotestant religion, and the laws and liberties of the kingdom; and the first of them is the assuming andexercising a power of dispensing with and suspending the laws, and the execution of the laws withoutconsent of parliament. The first article in the claim or declaration of rights contained in the statute is, thatthe exercise of such power, by legal authority without consent of parliament, is illegal. In the tenth sectionof the same statute it is further declared and enacted, that "No dispensation by non obstante of or to anystatute, or part thereof, should be allowed; but the same should be held void and of no effect, except adispensation be allowed of in such statute." There is an implied reservation of authority in the parliamentto exercise the power here mentioned; because, according to the theory of the English Constitution, "thatabsolute despotic power, which must in all governments reside somewhere," is intrusted to theparliament: 1 Bl. Com., 160.chanroblesvirtualawlibrary chanrobles virtual law library

The principles of our government are widely different in this particular. Here the sovereign and absolutepower resides in the people; and the legislature can only exercise what is delegated to them according tothe constitution. It is obvious that the exercise of the power in question would be equally oppressive to thesubject, and subversive of his right to protection, "according to standing laws," whether exercised by oneman or by a number of men. It cannot be supposed that the people when adopting this general principlefrom the English bill of rights and inserting it in our constitution, intended to bestow by implication on thegeneral court one of the most odious and oppressive prerogatives of the ancient kings of England. It ismanifestly contrary to the first principles of civil l iberty and natural justice, and to the spirit of ourconstitution and laws, that any one citizen should enjoy privileges and advantages which are denied to allothers under like circumstances; or that ant one should be subject to losses, damages, suits, or actionsfrom 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 theowner of domestic animals wounded by it for the damages without proving a knowledge of it viciousdisposition. By a provision of the act, power was given to the board of supervisors to determine whetheror not during the current year their county should be governed by the provisions of the act of which thatsection constituted a part. It was held that the legislature could not confer that power. The court observedthat it could no more confer such a power than to authorize the board of supervisors of a county toabolish 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 samereason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulatinga road system contained a provision that "if the county court of any county should be of opinion that theprovisions of the act should not be enforced, they might, in their discretion, suspend the operation of thesame for any specified length of time, and thereupon the act should become inoperative in such countyfor the period specified in such order; and thereupon order the roads to be opened and kept in goodrepair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions, repeals theinconsistent provisions of a former act, and yet it is left to the county court to say which act shall beenforce 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, requirethe county court to do any act in order to give it effect. But being the law in the county, and having by itsprovisions 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 questionis before the county court for that tribunal to determine which law shall be in force, it is urge before us thatthe 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, thequestion is not presented in the abstract; for the county court of Saline county, after the act had been forseveral 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.) chanrobles virtual law library

True, the legislature may enact laws for a particular locality different from those applicable to otherlocalities and, while recognizing the force of the principle hereinabove expressed, courts in may

jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the people.

(6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character which shouldreceive different treatment in different localities placed under different circumstances. "They relate tosubjects 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 theimpregnable ground, that the subject, though not embraced within the ordinary powers of municipalities tomake by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which itis 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 ofpurely local concern in the hands of local authorities or for the people of small communities to pass upon,we believe that in matters of general of general legislation like that which treats of criminals in general,and as regards the general subject of probation, discretion may not be vested in a manner so unqualifiedand absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincialboards may suspend the operation of the Probation Act in particular provinces but, considering that, inbeing vested with the authority to appropriate or not the necessary funds for the salaries of probationofficers, they thereby are given absolute discretion to determine whether or not the law should take effector operate in their respective provinces, the provincial boards are in reality empowered by the legislatureto suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance untilthe provincial boards should decide otherwise by appropriating the necessary funds. The validity of a lawis 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.) chanrobles virtual law library

It in conceded that a great deal of latitude should be granted to the legislature not only in the expressionof 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 beensaid that popular government lives because of the inexhaustible reservoir of power behind it. It isunquestionable that the mass of powers of government is vested in the representatives of the people andthat these representatives are no further restrained under our system than by the express language of theinstrument imposing the restraint, or by particular provisions which by clear intendment, have that effect.(Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off.Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of powerand one of these time-honored limitations is that, subject to certain exceptions, legislative power shall notbe delegated.chanroblesvirtualawlibrary chanrobles virtual law library

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation oflegislative authority to the provincial boards and is, for this reason, unconstitutional andvoid.chanroblesvirtualawlibrary chanrobles virtual law library

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of thePhilippines.) chanrobles virtual law library

This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments ofour government and on the subordinate instrumentalities and subdivision thereof, and on manyconstitutional power, like the police power, taxation and eminent domain. The equal protection of laws,sententiously observes the Supreme Court of the United States, "is a pledge of the protection of equallaws." (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 beregarded as a denial of the equal protection of the laws in a question not always easily determined. Norule 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 favoringothers in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, ispermitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S.F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs.Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based onsubstantial distinctions which make real differences; it must be germane to the purposes of the law; itmust 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 GasCo.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; LakeShore & 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.) chanrobles virtual lawlibrary

In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegationof legislative power, although perhaps this is not necessarily the result in every case. Adopting theexample given by one of the counsel for the petitioners in the course of his oral argument, one provincemay appropriate the necessary fund to defray the salary of a probation officer, while another provincemay refuse or fail to do so. In such a case, the Probation Act would be in operation in the former provincebut not in the latter. This means that a person otherwise coming within the purview of the law would beliable to enjoy the benefits of probation in one province while another person similarly situated in anotherprovince would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is alsopossible for all the provincial boards to appropriate the necessary funds for the salaries of the probationofficers in their respective provinces, in which case no inequality would result for the obvious reason thatprobation would be in operation in each and every province by the affirmative action of appropriation byall the provincial boards. On that hypothesis, every person coming within the purview of the Probation Actwould be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if noprovince, through its provincial board, should appropriate any amount for the salary of the probationofficer - which is the situation now - and, also, if we accept the contention that, for the purpose of theProbation Act, the City of Manila should be considered as a province and that the municipal board of saidcity has not made any appropriation for the salary of the probation officer. These different situationssuggested show, indeed, that while inequality may result in the application of the law and in the

conferment of the benefits therein provided, inequality is not in all cases the necessary result. Butwhatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in whichdiscrimination and inequality are permitted or allowed. There are, to be sure, abundant authoritiesrequiring actual denial of the equal protection of the law before court should assume the task of settingaside a law vulnerable on that score, but premises and circumstances considered, we are of the opinionthat section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on thataccount bad. We see no difference between a law which permits of such denial. A law may appear to befair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is withinthe constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed.,550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S.,339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs.Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law.ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey

vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs.Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes maybe adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U.S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl.,944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it isunconstitutional. (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; Statevs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of theProbation Act, not only may said Act be in force in one or several provinces and not be in force in otherprovinces, but one province may appropriate for the salary of the probation officer of a given year - and



have probation during that year - and thereafter decline to make further appropriation, and have noprobation is subsequent years. While this situation goes rather to the abuse of discretion which delegationimplies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in agovernment of laws, and to prove how easy it is, under the Act, to make the guaranty of the equalityclause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41Law. ed., 666; 17 Sup. Ct. Rep., 255.) chanrobles virtual law library

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 thedecision of this court (18 Phil., 1) by declining to uphold the contention that there was a denial of theequal 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 territorialuniformity. It should be observed, however, that this case concerns the right to preliminary investigationsin criminal cases originally granted by General Orders No. 58. No question of legislative authority wasinvolved and the alleged denial of the equal protection of the laws was the result of the subsequentenactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing insection 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the defendant. . . shall not be entitled as of right to a preliminary examination in any case where the prosecutingattorney, after a due investigation of the facts . . . shall have presented an information against him inproper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that theinvestigation by the prosecuting attorney - although not in the form had in the provinces - was considereda reasonable substitute for the City of Manila, considering the peculiar conditions of the city as found andtaken into account by the legislature itself.chanroblesvirtualawlibrary chanrobles virtual law library

Reliance is also placed on the case of Missouri vs. Lewis, supra . That case has reference to a situationwhere the constitution of Missouri permits appeals to the Supreme Court of the state from final judgmentsof any circuit court, except those in certain counties for which counties the constitution establishes aseparate court of appeals called St. Louis Court of Appeals. The provision complained of, then, is found inthe constitution itself and it is the constitution that makes the apportionment of territorial

jurisdiction.chanroblesvirtualawlibrary chanrobles virtual law library

We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also

repugnant to equal-protection clause of our Constitution.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the nextinquiry 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 willresort 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 purposesof 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), thiscourt stated the well-established rule concerning partial invalidity of statutes in the following

language: chanrobles virtual law library

. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, thevalid portion, if separable from the valid, may stand and be enforced. But in order to do this, the validportion must be in so far independent of the invalid portion that it is fair to presume that the Legislativewould 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 HolmesCo. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make acomplete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132Ga., 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 languageused in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, andwhat remains must express the legislative will, independently of the void part, since the court has nopower 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 provincesin which the respective provincial boards provided for the salaries of probation officers were inoperativeon constitutional grounds, the remainder of the Act would still be valid and may be enforced. We shouldbe inclined to accept the suggestions but for the fact that said section is, in our opinion, is inseparablylinked with the other portions of the Act that with the elimination of the section what would be left is thebare idealism of the system, devoid of any practical benefit to a large number of people who may bedeserving of the intended beneficial result of that system. The clear policy of the law, as may be gleanedfrom a careful examination of the whole context, is to make the application of the system dependententirely upon the affirmative action of the different provincial boards through appropriation of the salariesfor probation officers at rates not lower than those provided for provincial fiscals. Without such action onthe part of the various boards, no probation officers would be appointed by the Secretary of Justice to actin the provinces. The Philippines is divided or subdivided into provinces and it needs no argument toshow that if not one of the provinces - and this is the actual situation now - appropriate the necessaryfund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be noprobation without a probation officer. Neither can there be a probation officer without the probationsystem.chanroblesvirtualawlibrary chanrobles virtual law library

Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Everyprobation officer is given, as to the person placed in probation under his care, the powers of the policeofficer. It is the duty of the probation officer to see that the conditions which are imposed by the courtupon the probationer under his care are complied with. Among those conditions, the following areenumerated in section 3 of the Act:

That the probationer (a) shall indulge in no injurious or vicious habits; chanrobles virtual law library

(b) Shall avoid places or persons of disreputable or harmful character; chanrobles virtual law library

(c) Shall report to the probation officer as directed by the court or probation officers; chanrobles virtual lawlibrary

(d) Shall permit the probation officer to visit him at reasonable times at his place of abode orelsewhere; chanrobles virtual law library

(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning hisconduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a

specified place or locality; chanrobles virtual law library

(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused byhis offense;chanrobles virtual law library

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



(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated inaccordance with law.

The court is required to notify the probation officer in writing of the period and terms of probation. Undersection 4, it is only after the period of probation, the submission of a report of the probation officer andappropriate finding of the court that the probationer has complied with the conditions of probation that

probation may be definitely terminated and the probationer finally discharged from supervision. Undersection 5, if the court finds that there is non-compliance with said conditions, as reported by the probationofficer, it may issue a warrant for the arrest of the probationer and said probationer may be committedwith 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 sentenceoriginally imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of everyprobation officer to furnish to all persons placed on probation under his supervision a statement of theperiod and conditions of their probation, and to instruct them concerning the same; to keep informedconcerning their conduct and condition; to aid and encourage them by friendly advice and admonition,and by such other measures, not inconsistent with the conditions imposed by court as may seem mostsuitable, to bring about improvement in their conduct and condition; to report in writing to the court having

jurisdiction over said probationers at least once every two months concerning their conduct and condition;to keep records of their work; make such report as are necessary for the information of the Secretary ofJustice and as the latter may require; and to perform such other duties as are consistent with thefunctions of the probation officer and as the court or judge may direct. The probation officers provided forin this Act may act as parole officers for any penal or reformatory institution for adults when so requestedby the authorities thereof, and, when designated by the Secretary of Justice shall act as parole officer ofpersons released on parole under Act Number Forty-one Hundred and Three, without additionalcompensation." chanrobles virtual law library

It is argued, however, that even without section 11 probation officers maybe appointed in the provincesunder section 10 of Act which provides as follows:

There is hereby created in the Department of Justice and subject to its supervision and control, aProbation Office under the direction of a Chief Probation Officer to be appointed by the Governor-Generalwith the advise and consent of the Senate who shall receive a salary of four eight hundred pesos per

annum. To carry out this Act there is hereby appropriated out of any funds in the Insular Treasury nototherwise appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, whois hereby authorized to appoint probation officers and the administrative personnel of the probation officerunder civil service regulations from among those who possess the qualifications, training and experienceprescribed by the Bureau of Civil Service, and shall fix the compensation of such probation officers andadministrative personnel until such positions shall have been included in the Appropriation Act.

But the probation officers and the administrative personnel referred to in the foregoing section are clearlynot those probation officers required to be appointed for the provinces under section 11. It may besaid, reddendo singula singulis , that the probation officers referred to in section 10 above-quoted are toact as such, not in the various provinces, but in the central office known as the Probation Officeestablished in the Department of Justice, under the supervision of the Chief Probation Officer. When thelaw provides that "the probation officer" shall investigate and make reports to the court (secs. 1 and 4);that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that theprobationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" tovisit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the probationofficer" concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probationofficer" in writing of the period and terms of probation (sec. 3, last par.), it means the probation officer whois in charge of a particular probationer in a particular province. It never could have been intention of thelegislature, for instance, to require the probationer in Batanes, to report to a probationer officer in the Cityof Manila, or to require a probation officer in Manila to visit the probationer in the said province ofBatanes, 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 bylaw.chanroblesvirtualawlibrary chanrobles virtual law library

That under section 10 the Secretary of Justice may appoint as many probation officers as there areprovinces or groups of provinces is, of course possible. But this would be arguing on what the law may beor 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 muchas has been said regarding progressive interpretation and judicial legislation we decline to amend thelaw. We are not permitted to read into the law matters and provisions which are not there. Not for anypurpose - not even to save a statute from the doom of invalidity.chanroblesvirtualawlibrary chanroblesvirtual law library

Upon the other hand, the clear intention and policy of the law is not to make the Insular Governmentdefray the salaries of probation officers in the provinces but to make the provinces defray them shouldthey desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out thepurposes of this Act", is to be applied, among other things, for the salaries of probation officers in thecentral office at Manila. These probation officers are to receive such compensations as the Secretary ofJustice may fix "until such positions shall have been included in the Appropriation Act". It was theintention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers

in the provinces or later on to include said salaries in an appropriation act. Considering, further, that thesum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of theadministrative personnel of the Probation Office, what would be left of the amount can hardly be said tobe sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial notice ofthe fact that there are 48 provinces in the Philippines and we do not think it is seriously contended that,with the fifty thousand pesos appropriated for the central office, there can be in each province, asintended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, thecontention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under theremainder of the Act, unless it is conceded that in our case there can be a system of probation in theprovinces without probation officers.chanroblesvirtualawlibrary chanrobles virtual law library

Probation as a development of a modern penology is a commendable system. Probation laws have beenenacted, here and in other countries, to permit what modern criminologist call the "individualization of the

punishment", the adjustment of the penalty to the character of the criminal and the circumstances of hisparticular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It isbelieved that, in any cases, convicts may be reformed and their development into hardened criminalsaborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so longas the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare ofsociety is its chief end and aim. The benefit to the individual convict is merely incidental. But while webelieve that probation is commendable as a system and its implantation into the Philippines should bewelcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to ourfundamental law.chanroblesvirtualawlibrary chanrobles virtual law library

In arriving at this conclusion, we have endeavored to consider the different aspects presented by ablecounsel for both parties, as well in their memorandums as in their oral argument. We have examined thecases brought to our attention, and others we have been able to reach in the short time at our commandfor the study and deliberation of this case. In the examination of the cases and in then analysis of thelegal principles involved we have inclined to adopt the line of action which in our opinion, is supportedbetter reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad[1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certainadjudicated cases brought to our attention, except where the point or principle is settled directly or byclear 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 andthe dual character of the American Government is a situation which does not obtain in thePhilippines; chanrobles virtual law library

(b) The situation of s state of the American Union of the District of Columbia with reference to the FederalGovernment of the United States is not the situation of the province with respect to the Insular

Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives,84 Fed. [2d], 871), chanrobles virtual law library

(c) The distinct federal and the state judicial organizations of the United States do not embrace theintegrated judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p.1317); chanrobles virtual law library

(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 andcircumstances" (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 principlesshould be interpreted having in view existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly,granted. Without any pronouncement regarding costs. So ordered.chanroblesvirtualawlibrary chanroblesvirtual law library

Avanceña, C.J., Imperial, Diaz and Concepcion, JJ., concur.Villa-real and Abad Santos, JJ., concur in the result.

2. people v vera

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