361. people vs. vera.docx

8/10/2019 361. people vs. vera.docx

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

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent Cu Unjieng.No appearance for respondent Judge.

LAUREL, J .:

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

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively the plaintiff and

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

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931, petitioner hereinHongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a protracted trial unparalleled in theannals of Philippine jurisprudence both in the length of time spent by the court as well as in the volume in the testimony and the bulk ofthe exhibits presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment o f conviction sentencing thedefendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight years ofprision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and Shanghai BankingCorporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and sixmonths ofprision correccional to seven years, six months and twenty-seven days ofprision mayor, but affirmed the judgment in all otherrespects. Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial which were denied on

December 17, 1935, and final judgment was accordingly entered on December 18, 1935. The defendant thereupon sought to have thecase elevated oncertiorarito the Supreme Court of the United States but the latter denied the petition for certiorariin November,1936. This court, on November 24, 1936, denied the petition subsequently filed by the defendant for leave to file a secondalternative motion for reconsideration or new trial and thereafter remanded the case to the court of origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu Unjieng onNovember 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondentMariano Cu Unjieng states in his petition, 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, Judge Pedro Tuason presiding,referred the application for probation of the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter,the Court of First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent Mariano CuUnjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221, assuming

that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), ArticleIII of the Constitution guaranteeing equal protection of the laws for the reason that its applicability is not uniform throughout the Islandsand because section 11 of the said Act endows the provincial boards with the power to make said law effective or otherwise in theirrespective or otherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19, 1937,elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards ofseveral provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except withrespect to the questions raised concerning the constitutionality of Act No. 4221.

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

. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han expuesto en elcuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion publica, atizada por losrecelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar en losprocedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer a lasuperficie conclusiones enteramente 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 the resolution denying probation and anotice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new trial was filed by counsel on July13, 1937. This was supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions wereset for hearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjiengbecause a motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed withthe trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition for leave towithdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a


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banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without maturedeliberation and purely as a matter of courtesy to the person who invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of execution of thejudgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to saidjudgment.

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici curiaeaforementioned,

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

The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining order by this

court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorariand prohibition, herein petitioners allege that therespondent judge has acted without jurisdiction or in excess of his jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of thePhilippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special provision, theterm "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general application, itis also true that Act No. 4221 is not a law of general application because it is made to apply only to those provinces in which

the respective provincial boards shall have provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it hasprovided for the salary of a probation officer as required by section 11 thereof; it being immaterial that there is an InsularProbation Officer willing to act for the City of Manila, said Probation Officer provided for in section 10 of Act No. 4221 beingdifferent and distinct from the Probation Officer provided for in section 11 of the same Act.

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

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of applications forprobation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became final andexecutory at the moment of its rendition.

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

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

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was convicted by finaljudgment of this court, which finding is not only presumptuous but without foundation in fact and in law, and is furthermore in contemptof this court and a violation of the respondent's oath of office as ad interimjudge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he issued his order of

June 28, 1937, denying the application for probation, to commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation further contendsthat Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen years of age or over who areconvicted of crime, is unconstitutional because 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 the absolute discretion to makesaid law operative or otherwise in their respective provinces, because it constitutes an unlawful and improper delegation to theprovincial boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Leg islature andby the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, incontravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court ofFirst Instance of different provinces without uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the


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City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised byother petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further elaborated onthe theory that probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the ChiefExecutive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he contended that ActNo. 4221 not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation of legislativepower and a denial of the equal protection of the laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and theSolicitor-General, acting in behalf of the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and ShanghaiBanking Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending that Act No.4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was filed by the same

persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection of thelaws and constitutes an unlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth is notestopped from questioning the validity of its laws; that the private prosecution may intervene in probation proceedings and may attackthe probation law as unconstitutional; and that this court may pass upon the constitutional question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each and everyone of the foregoing proposition raised by the petitioners.

As special defenses, respondents allege:

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

(2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy prayed forby them before the trial court and was still pending resolution before the trial court when the present petition was filed with thiscourt.

(3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court, said trialcourt has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying probation isunappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the questionas to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the Court of FirstInstance has assumed jurisdiction over the same upon motion of herein petitioners themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over thecase and elevate the proceedings to this court, should not be tolerated because it impairs the authority and dignity of the trial

court which court while sitting in the probation cases is "a court of limited jurisdiction but of great dignity."

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

(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being appealable, thesame had not become final and executory for the reason that the said respondent had filed an alternative motion forreconsideration and new trial within the requisite period of fifteen days, which motion the trial court was able to resolve in viewof the restraining order improvidently and erroneously issued by this court.lawphi1.net

(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying probation is not

final and unappealable when he presented his answer to the motion for reconsideration and agreed to the postponement ofthe hearing of the said motion.

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

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

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

In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional because,contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power, does not infringe the equalprotection clause of the Constitution, and does not encroach upon the pardoning power of the Executive. In an additional memorandumfiled on the same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from constitutionalobjections and contend, in addition, that the private prosecution may not intervene in probation proceedings, much less question thevalidity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of the Act; that thevalidity of Act cannot be attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11 of


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the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied forhaving been filed out of time but was admitted by resolution of this court and filed anew on November 5, 1937. Thismemorandum elaborates on some of the points raised by the respondents and refutes those brought up by the petitioners.

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

After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court prefers to cutthe Gordian knot and take up at once the two fundamental questions presented, namely, (1) whether or not the constitutionality of ActNo. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional.Considerations of these issues will involve a discussion of certain incidental questions raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well -settled rule that theconstitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presentedinappropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis

mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless, resort may bemade to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if available, are not plain,speedy and adequate. Thus, in Cu Unjieng vs. Patstone([1922]), 42 Phil., 818), this court held that the question of the constitutionalityof a statute may be raised by the petitioner in mandamusproceedings (see, also, 12 C. J., p. 783); and in Government of the PhilippineIslands vs. Springer([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law.ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought in the name of theGovernment of the Philippines. It has also been held that the constitutionality of a statute may be questioned inhabeascorpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; onan application for injunction to restrain action under the challenged statute (mandatory, seeCruz vs. Youngberg [1931], 56 Phil., 234);and even on an application for preliminary injunction where the determination of the constitutional question is necessary to a decision ofthe case. (12 C. J., p. 783.) The same may be said as regardsprohibition 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 twelveyears ago was, like the present one, an original action for certiorariand prohibition. The constitutionality of Act No. 2972, popularlyknown as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was not met squarely bythe respondent in a demurrer. A point was raised "relating to the propriety of the constitutional question being decided in originalproceedings in prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No.2972 was constitutional. The case was elevated on writ of certiorarito the Supreme Court of the United States which reversed the

judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however,the Federal Supreme Court, though its Chief Justice, said:

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

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, forthe purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary LegalRemedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether theinferior court has jurisdiction independent of the statute the constitutionality of which is questioned, because in such cases the interiorcourt having jurisdiction may itself determine the constitutionality of the statute, and its decision may be subject to review, andconsequently the complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But

where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ ofprohibition from enforcing that statute. (50 C. J., 670; Ex parteRound tree [1874, 51 Ala., 42; In reMacfarland, 30 App. [D. C.], 365;Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va.,54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which prescribes in detailedmanner the procedure for granting probation to accused persons after their conviction has become final and before they have servedtheir sentence. It is true that at common law the authority of the courts to suspend temporarily the execution of the sentence isrecognized and, according to a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the power isinherent 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 theleading case of Ex parteUnited States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law the power of the court waslimited to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through Chief Justice White:


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Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to imposethe punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers vested in them on suchsubject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exerttheir authority. But these concessions 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. And the effect of theproposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed thatindisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right inadvance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would beotherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained

according to the methods by it provided belongs to the executive department.

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

It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the question has notbeen properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State exrel. 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 the private prosecution. Therespondent, Hon. Jose O Vera, however, acting as judge of the court below, declined to pass upon the question on the ground that the

private prosecutor, not being a party whose rights are affected by the statute, may not raise said question. The respondent judge citedCooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack made on the const itutionality ofa statute by one who has no interest in defeating it because his rights are not affected by its operation. The respondent judge furtherstated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to declare a legislativeenactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case wherehe can conscientiously and with due regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I,p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that the constitutionalquestion was raised before it, it refused to consider the question solely because it was not raised by a proper party. Respondentsherein reiterates this view. The argument is advanced that the private prosecution has no personality to appear in the hearing of theapplication for probation of defendant 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 toa suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced bya court without jurisdiction is void, where the 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 interested in the effect to be given the

statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by theproper party, it does not follow that the issue may not be here raised in an original action of certiorariand prohibitions. It is true that, asa general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pl eadings, ordinarilyit may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See,also,Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits ofexceptions. Courts, in the exercise of sounds discretion, may determine the time when a question affecting the constitutionality of astatute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflictof authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or onappeal. (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, thoughraised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's

Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685;113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutionalquestion will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke[1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before thiscourt in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on thehypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raisethe constitutional question here a point we do not now have to decidewe are of the opinion that the People of the Philippines,represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. Theunchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the casesuch that he has sustained, or will sustained, 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, has a substantial interest in havingit set aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon thefundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its ownlaws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the PhilippineIslands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted inbehalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429),the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew amining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired theobligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was though, as a

general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it hasbeen held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on thevalidity of the statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court bypersons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was notproperly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action ofcertiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, sothat if not raised by the pleadings, ordinarily it may not be raised a the trial, and i f not raised in the trial court, it will not be considered onappeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state thatthe general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting theconstitutionality of a statute should be presented. (In re Woolsey [19884], 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 state of the proceedings, either inthe 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 theconstitutional question, though raised for first time on appeal, if it appears that a determination of the question is necessary to adecision 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,


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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 hasbeen held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of thecourt below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional questionraised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs.Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, isnot the proper party to raise the constitutional question here a point we do not now have to decidewe are of the opinion that thePeople of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the presentproceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantialinterest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if

Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has asubstantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is themortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state canchallenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springervs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislatureunconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich.,303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to testthe right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right wasunconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to quest ion 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 by their representatives;that to an accusation by the people of Michigan of usurpation their government, a statute enacted by the people of Michigan isan adequate answer. The last proposition is true, but, if the statute relied on in justification is unconstitutional, it is statute only

in form, and lacks the force of law, and is of no more saving effect to justify action under it than if it had never been enacted.The constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow . . . The legislatureand the respondents are not the only parties in interest upon such constitutional questions. As was remarked by Mr. JusticeStory, in speaking of an acquiescence by a party affected by an unconstitutional act of the legislature: "The people have adeep and vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vs.Mckeen, 1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the Attorney-General ofKansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the state may bring the action,the Supreme Court of Kansas said:

. . . the state is a proper partyindeed, the proper party to bring this action. The state is always interested where theintegrity of its Constitution or statutes is involved.

"It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individualplaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac.,118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.)

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

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

It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the laws, hasno right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel. Hall,District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare,Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679;18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a statute is unconstitutional if 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 wasthe judge should not, merely because he believed a certain statute to be unconstitutional forbid the district attorney to file a billof information charging a person with a violation of the statute. In other words, a judge should not judicially declare a statuteunconstitutional until the question of constitutionality is tendered for decision, and unless it must be decided in order todetermine the right of a party litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officeron whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers thestatute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute be unconstitutional.State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g., the state auditor and statetreasurer, should not decline to perform ministerial duties imposed upon them by a statute, on the ground that they believe thestatute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution of thestate. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals another, and if, inhis judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he iscompelled 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 theLegislature would be free from constitutional limitations in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the valid ity of itslaws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have proceeded on theassumption that the rule as stated is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal inbehalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that the validity before this court, that


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the City Fiscal is estopped from attacking the validity of the Act and, not authorized challenge the validity of the Act in i ts applicationoutside said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)

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

It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of the instantcase. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the part of wisdom, and justrespect for the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex

parteRandolph [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 of the case (12 C. J., p. 782,citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas.1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458;Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statutethe validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs.Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation solely from ActNo. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new addition to our

statute books and its validity has never before been passed upon by the courts; that may persons accused and convicted of crime inthe City of Manila have applied for probation; that some of them are already on probation; that more people will likely take advantage ofthe Probation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about four years since hisfirst conviction. All wait the decision of this court on the constitutional question. Considering, therefore, the importance which the instantcase has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221be 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; 133N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra,an analogous situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants areaffected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the publicwelfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that wemay decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on thispoint was sustained by the Supreme Court of the United States. A more binding authority in support of the view we have taken can notbe found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now for the maininquiry: Is the Act unconstitutional?

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

judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor ofthe constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within constitutional limitations.The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. "The question of the validityof every statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phi l., 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 thecourts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath tosupport the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particularlaw they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemndeclarations of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar politicalphilosophy 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 Constitution except in a clear case. Thisis a proposition too plain to require a citation of authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the President of thePhilippines had already expressed his opinion against the constitutionality of the Probation Act, adverting that as to the Executive theresolution of this question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and independence ofthis court. We take notice of the fact that the President in his message dated September 1, 1937, recommended to the National

Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of theNationality Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by thePresident on September 13, 1937, much against his wish, "to have stricken out from the statute books of the Commonwealth a law . . .unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the Presidentexercised his constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his reasonsare not binding upon us in the determination of actual controversies submitted for our determination. Whether or not the Executiveshould express or in any manner insinuate his opinion on a matter encompassed within his broad constitutional power of veto but whichhappens to be at the same time pending determination in this court is a question of propriety for him exclusively to decide or determine.Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgment on way or another and preventus from taking what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us to make anyvehement affirmance during this formative period of our political history, it is that we are independent of the Executive no less than ofthe Legislative department of our government independent in the performance of our functions, undeterred by any consideration,free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as weunderstand it.


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The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the pardoning powerof the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies the equal protection of the laws.

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of the approval of ActNo. 4221, otherwise known as the Probation Act, vests in the Governor-General of the Philippines "the exclusive power to grantpardons and reprieves and remit fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11,subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive" found in the JonesLaw has been omitted from the Constitution. Under the Jones Law, as at common law, pardon could be granted any time after thecommission of the offense, either before or after conviction (VideConstitution of the United States, Art. II, sec. 2; In reLontok [1922], 43

Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a personbefore the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most ofthe 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(VideConstitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in barof an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not understood thatthe king's royal grace is further restrained or abridged." (Vide, Ex parteWells [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 office and disqualification to holdand enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to thewhole punishment attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capitalpunishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense committed,together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specificmention of "commutation" and of the power of the executive to impose, in the pardons he may grant, such conditions, restrictions and

limitations as he may deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrence ofthe National Assembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient for our purposesto state that the pardoning power has remained essentially the same. The question is: Has the pardoning power of the Chief Executiveunder the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the power may not,therefore, be vested in anyone else.". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative restrictions, nor canlike power be given by the legislature to any other officer or authority. The coordinate departments of government have nothing to dowith the pardoning power, since no person properly belonging to one of the departments can exercise any powers appertaining to eitherof the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoningpower is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neitherexercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838,839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void.But does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that an orderindefinitely suspending sentenced was void. (Ex parteUnited States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the opinion ofthe court that under the 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 in the judiciary. But, the right ofCongress to establish probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the future isconcerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as thelegislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of an en larged butwise discretion the infinite variations which may be presented to them for judgment, recourse must be had Congress whose legislativepower on the subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.)This decision led the National Probation Association and others to agitate for the enactment by Congress of a federal probation law.Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by anappropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service. (Johnson, Probation

for Juveniles and Adults, p. 14.)

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the United States,through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has begun to serve his sentence, thatcourt has no power under the Probation 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 not considered but was assumed. Thecourt traced the history of the Act and quoted from the report of the Committee on the Judiciary of the United States House ofRepresentatives (Report No. 1377, 68th Congress, 2 Session) the following statement:

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

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

If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those convictedof violations of its criminal laws in harmony with that of the states of the Union. At the present time every state has a probationlaw, and in all but twelve states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation forJuveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United States supra, theCircuit Court of Appeals of the Fourth Circuit said:


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Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by the CircuitCourt of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the same held inno manner to encroach upon the pardoning power of the President. This case will be found to contain an able andcomprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the authorities citedtherein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals ofthe 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 aspossessing the requisite power to enact probation laws, that a federal probation law as actually enacted in 1925, and that theconstitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and consistently sustained by theinferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a probation law underits broad power to fix the punishment of any and all penal offenses. This conclusion is supported by other authorities. In Ex parteBates([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 todenominate and define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State vs. Abbott([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to setpunishment for crime is very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, thelargest discretion as to the sentence to be imposed, 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, the Philippine Legislature hasdefined all crimes and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courtsparticularly the trial courts large discretion in imposing the penalties which the law prescribes in particular cases. It is believed that

justice can best be served by vesting this power in the courts, they being in a position to best determine the penalties which an

individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentencemerely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law isclearly excessive, the courts being allowed in such case to submit to the Chief Executive, through the Department of Justice, suchstatement as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances areattendant in the commission of a crime and the law provides for a penalty composed of two indivisible penalties, the courts may allowsuch circumstances to offset one another in consideration of their number and importance, and to apply the penalty according to theresult 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 each periods, in case the penaltyprescribed by law contains three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are allowedto fix any amount within the limits established by law, considering not only the mitigating and aggravating circumstances, but moreparticularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "adiscretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who has not acted without discernment,but always lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 of the same Codeprovides that in case of "incomplete self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of someof the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of

the Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of theconditions of exemption present or lacking." And, in case the commission of what are known as "impossible" crimes, "the court , havingin mind the social danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fineranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term ofimprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty person is morethan seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the members thereof are notunanimous 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 woman within the three years nextfollowing the date of the sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convictshall become insane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the execution ofsaid sentence shall be suspended with regard to the personal penalty during the period of such insanity or imbecility (art. 79).

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


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We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to vest in thecourts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would encroach upon the pardoningpower of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702;State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parteClendenning [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

parteShelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E.858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs.Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567;Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; ReGiannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parteDe Voe [1931], 114Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac.,1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs.Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner[1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn.,529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E.,274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq.,430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court ofSession [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], 55Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275;

233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E.,6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914],73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122Tex. 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 exrel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena ofauthorities holding that the courts may be legally authorized by the legislature to suspend sentence by the establishment of a system ofprobation however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393),deserved particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the execution of a sentenceuntil otherwise ordered by the court, and required that the convicted person be placed under the charge of a parole or peace officerduring the term of such suspension, on such terms as the court may determine, was held constitutional and as not giving the court apower in violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Vide, also, ReGiannini[1912], 18 Cal App., 166; 122 Pac., 831.)

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

. . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution wasadopted, are totally distinct and different in their nature. The former was always a part of the judicial power; the latter wasalways a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarilyor indefinitely, but the conviction and liability following it, and the civil disabilities, remain and become operative when judgmentis rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases thepunishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had nevercommitted the offense. It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were,a new man, and gives him a new credit and capacity. (Ex parteGarland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs.Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly familiar with the principles governing the power to grantpardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, andthe words of the constitution were used to express the authority formerly exercised by the English crown, or by itsrepresentatives in the colonies. (Ex parteWells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, itdid not comprehend any part of the judicial functions to suspend sentence, and it was never intended that the authority to grantreprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments,that criminal courts has so long maintained. The two powers, so distinct and different in their nature and character, were st illleft separate and distinct, the one to be exercised by the executive, and the other by the judicial department. We thereforeconclude that a statute which, 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 constitution was adopted to bean ordinary judicial function, and which, ever since its adoption, has been exercised of legislative power under the constitution.It does not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced fromthe earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265,Carson, J., concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is notexempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the merefact that he is placed on probation. Section 4 of the Act provides that the probation may be definitely terminated and the probationerfinally discharged from supervision only after the period of probation shall have been terminated and the probation officer shall havesubmitted 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, hemay 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 ofpunishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find prescribed by the criminallaws. For this reason its application is as purely a judicial act as any other sentence carrying out the law deemed applicable tothe offense. The executive act of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or


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rather is outside of and above it. There is thus no conflict with the pardoning power, and no possible unconstitutionality of theProbation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

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

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

In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of Montana had underconsideration the validity of the adult probation law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of1921. The court held the law valid as not impinging upon the pardoning power of the executive. In a unanimous decision penned byJustice Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our Constitu

361. people vs. vera.docx

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