47. People v. Vera [G.R. No.

L-45685, November 16, 1937]

LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the
issuance of the writ of certiorari and of prohibition to the Court of First
Instance of Manila so that this court may review the actuations of the
aforesaid Court of First Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more
particularly the application of the defendant Mariano Cu Unjieng therein for
probation under the provisions of Act No. 4221, and thereafter prohibit the
said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the
defendant Mariano Cu Unjieng may be forthwith committed to prison in
accordance with the final judgment of conviction rendered by this court in
said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and
Shanghai Banking Corporation, are respectively the plaintiff and the offended
party, and the respondent herein Mariano Cu Unjieng is one of the
defendants, in the criminal case entitled "The People of the Philippine Islands
vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First
Instance of Manila and G.R. No. 41200 of this court. Respondent herein,
Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court
of First Instance of Manila, who heard the application of the defendant
Mariano Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First
Instance of Manila on October 15, 1931, petitioner herein Hongkong and
Shanghai Banking Corporation intervening in the case as private prosecutor.
After a protracted trial unparalleled in the annals of Philippine jurisprudence
both in the length of time spent by the court as well as in the volume in the
testimony and the bulk of the exhibits presented, the Court of First Instance
of Manila, on January 8, 1934, rendered a judgment of conviction sentencing
the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four
years and two months of prision correccional to eight years of prision mayor,
to pay the costs and with reservation of civil action to the offended party, the
Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on
March 26, 1935, modified the sentence to an indeterminate penalty of from
five years and six months of prision correccional to seven years, six months
and twenty-seven days ofprision mayor, but affirmed the judgment in all other
respects. Mariano Cu Unjieng filed a motion for reconsideration and four
successive motions for new trial which were denied on December 17, 1935,

and final judgment was accordingly entered on December 18, 1935. The
defendant thereupon sought to have the case elevated oncertiorari to the
Supreme Court of the United States but the latter denied the petition
for certiorari in
November, 1936. This court, on
November 24,
1936, denied the petition subsequently filed by the defendant for leave to file
a second alternative motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by
the herein respondent Mariano Cu Unjieng on
November 27, 1936,
before the trial court, under the provisions of Act No. 4221 of the defunct
Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted,
that he has no criminal record and that he would observe good conduct in the
future. The Court of First Instance of Manila, Judge Pedro Tuason presiding,
referred the application for probation of the Insular Probation Office which
recommended denial of the same June 18, 1937. Thereafter, the Court of
First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set
the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the
granting of probation to the herein respondent Mariano Cu Unjieng. The
private prosecution also filed an opposition on April 5, 1937, alleging, among
other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section
1, subsection (1), Article III of the Constitution guaranteeing equal protection
of the laws for the reason that its applicability is not uniform throughout the
Islands and because section 11 of the said Act endows the provincial boards
with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a
supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative
power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private
prosecution except with respect to the questions raised concerning the
constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a
resolution with a finding that "las pruebas no han establecido de unamanera
concluyente la culpabilidad del peticionario y que todos los hechos probados
no son inconsistentes o incongrentes con su inocencia" and concludes that
the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of

the crime of which he stands convicted by this court in G.R. No. 41200, but
denying the latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las
circunstancias y la historia social que se han expuesto en el cuerpo
de esta resolucion, que hacen al peticionario acreedor de la misma,
una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de
una causa criminal perturbando la quietud y la eficacia de las
decisiones ya recaidas al traer a la superficie conclusiones
enteramente differentes, en menoscabo del interes publico que
demanda el respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed
an exception to the resolution denying probation and a notice of intention to
file a motion for reconsideration. An alternative motion for reconsideration or
new trial was filed by counsel on July 13, 1937. This was supplemented by
an additional motion for reconsideration submitted on July 14, 1937. The
aforesaid motions were set for hearing on July 31, 1937, but said hearing
was postponed at the petition of counsel for the respondent Mariano Cu
Unjieng because a motion for leave to intervene in the case as amici
curiae signed by thirty-three (thirty-four) attorneys had just been filed with the
trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid
motion subsequently filed a petition for leave to withdraw his appearance
as amicus curiae on the ground that the motion for leave to intervene
as amici curiae was circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed the same
"without mature deliberation and purely as a matter of courtesy to the person
who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial
court for the issuance of an order of execution of the judgment of this court in
said case and forthwith to commit the herein respondent Mariano Cu Unjieng
to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion
for leave to intervene as amici 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 certain attorneys signing the same who were members
of the legal staff of the several counsel for Mariano Cu Unjieng. On August
10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all

parties including the movants for intervention as amici curiae to appear

before the court on August 14, 1937. On the last-mentioned date, the Fiscal
of the City of Manila moved for the hearing of his motion for execution of
judgment in preference to the motion for leave to intervene as amici
curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for
the postponement of the hearing of both motions. The respondent judge
thereupon set the hearing of the motion for execution on August 21, 1937,
but proceeded to consider the motion for leave to intervene as amici
curiae as in order. Evidence as to the circumstances under which said motion
for leave to intervene as amici curiae was signed and submitted to court was
to have been heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal process to put an end to
what they alleged was an interminable proceeding in the Court of First
Instance of Manila which fostered "the campaign of the defendant Mariano
Cu Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and ridicule
because of the apparent inability of the judicial machinery to make effective a
final judgment of this court imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended
upon the issuance of a temporary restraining order by this court on August
21, 1937.
To support their petition for the issuance of the extraordinary writs
of certiorari and prohibition, herein petitioners allege that the respondent
judge has acted without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent
Mariano Cu Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine
Legislature is made to apply only to the provinces of the Philippines;
it nowhere states that it is to be made applicable to chartered cities
like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to
the effect that in the absence of a special provision, the term
"province" may be construed to include the City of Manila for the
purpose of giving effect to laws of general application, it is also true
that Act No. 4221 is not a law of general application because it is
made to apply only to those provinces in which the respective

provincial boards shall have provided for the salary of a probation

officer.
(3) Even if the City of Manila were considered to be a province, still,
Act No. 4221 would not be applicable to it because it has provided for
the salary of a probation officer as required by section 11 thereof; it
being immaterial that there is an Insular Probation Officer willing to
act for the City of Manila, said Probation Officer provided for in
section 10 of Act No. 4221 being different and distinct from the
Probation Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to
entertain the application for probation of the respondent Mariano Cu Unjieng,
he nevertheless acted without jurisdiction or in excess thereof in continuing to
entertain the motion for reconsideration and by failing to commit Mariano Cu
Unjieng to prison after he had promulgated his resolution of June 28, 1937,
denying Mariano Cu Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by
Act No. 4221 to the granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's
petition for probation on June 28, 1937, it became final and executory
at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said
order or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is
innocent of the crime for which he was convicted by final judgment of this
court, which finding is not only presumptuous but without foundation in fact
and in law, and is furthermore in contempt of this court and a violation of the
respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his
duty, which became imperative when he issued his order of June 28, 1937,
denying the application for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate
remedy in the ordinary course of law.

In a supplementary petition filed on September 9, 1937, the petitioner

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

Respondents in their answer dated August 31, 1937, as well as in their oral
argument and memorandums, challenge each and every one of the foregoing
proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to
warrant the issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy
sought by the petitioners is the very same remedy prayed for by them
before the trial court and was still pending resolution before the trial
court when the present petition was filed with this court.
(3) That the petitioners having themselves raised the question as to
the execution of judgment before the trial court, said trial court has
acquired exclusive jurisdiction to resolve the same under the theory
that its resolution denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent
jurisdiction with the Court of First Instance to decide the question as
to whether or not the execution will lie, this court nevertheless cannot
exercise said jurisdiction while the Court of First Instance has
assumed jurisdiction over the same upon motion of herein petitioners
themselves.
(5) That upon the procedure followed by the herein petitioners in
seeking to deprive the trial court of its jurisdiction over the case and
elevate the proceedings to this court, should not be tolerated
because it impairs the authority and dignity of the trial court which
court while sitting in the probation cases is "a court of limited
jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to
resolve the question submitted to and pending resolution by the trial
court, the present action would not lie because the resolution of the
trial court denying probation is appealable; for although the Probation
Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying
probation, still it is a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable to the superior
court.

(7) That the resolution of the trial court denying probation of herein
respondent Mariano Cu Unjieng being appealable, the same had not
become final and executory for the reason that the said respondent
had filed an alternative motion for reconsideration and new trial within
the requisite period of fifteen days, which motion the trial court was
able to resolve in view of the restraining order improvidently and
erroneously issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted
that the resolution of the trial court denying probation is not final and
unappealable when he presented his answer to the motion for
reconsideration and agreed to the postponement of the hearing of the
said motion.
(9) That under the supposition that the order of the trial court denying
probation is not appealable, it is incumbent upon the accused to file
an action for the issuance of the writ ofcertiorari with mandamus, it
appearing that the trial court, although it believed that the accused
was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a
petition for certiorari grounded on an irregular exercise of jurisdiction
by the trial court could lie, it is incumbent upon the petitioner to file a
motion for reconsideration specifying the error committed so that the
trial court could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not
appealable, the trial court retains its jurisdiction within a reasonable
time to correct or modify it in accordance with law and justice; that
this power to alter or modify an order or resolution is inherent in the
courts and may be exercise either motu proprio or upon petition of the
proper party, the petition in the latter case taking the form of a motion
for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is
appealable as respondent allege, said court cannot order execution
of the same while it is on appeal, for then the appeal would not be
availing because the doors of probation will be closed from the
moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the
respondents maintain that Act No. 4221 is constitutional because, contrary to

the allegations of the petitioners, it does not constitute an undue delegation

of legislative power, does not infringe the equal protection clause of the
Constitution, and does not encroach upon the pardoning power of the
Executive. In an additional memorandum filed on the same date, counsel for
the respondents reiterate the view that section 11 of Act No. 4221 is free from
constitutional objections and contend, in addition, that the private prosecution
may not intervene in probation proceedings, much less question the validity
of Act No. 4221; that both the City Fiscal and the Solicitor-General are
estopped from questioning the validity of the Act; that the validity of Act
cannot be attacked for the first time before this court; that probation in
unavailable; and that, in any event, section 11 of the Act No. 4221 is
separable from the rest of the Act. The last memorandum for the respondent
Mariano Cu Unjieng was denied for having been filed out of time but was
admitted by resolution of this court and filed anew on
November 5,
1937. This memorandum elaborates on some of the points raised by the
respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the
present case, we noted that the court below, in passing upon the merits of
the application of the respondent Mariano Cu Unjieng and in denying said
application assumed the task not only of considering the merits of the
application, but of passing upon the culpability of the applicant,
notwithstanding the final pronouncement of guilt by this court. (G.R. No.
41200.) Probation implies guilt be final judgment. While a probation case may
look into the circumstances attending the commission of the offense, this
does not authorize it to reverse the findings and conclusive of this court,
either directly or indirectly, especially wherefrom its own admission reliance
was merely had on the printed briefs, averments, and pleadings of the
parties. As already observed by this court in Shioji vs. Harvey ([1922], 43
Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court
of First Instance could enjoy the privilege of overruling decisions of the
Supreme Court, there would be no end to litigation, and judicial chaos would
result." A becoming modesty of inferior courts demands conscious realization
of the position that they occupy in the interrelation and operation of the
intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both counsel for the
petitioners and the respondents, this court prefers to cut the Gordian knot
and take up at once the two fundamental questions presented, namely, (1)
whether or not the constitutionality of Act No. 4221 has been properly raised
in these proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a discussion of
certain incidental questions raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding

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

By the Code of Civil Procedure of the Philippine Islands, section 516,

the Philippine supreme court is granted concurrent jurisdiction in
prohibition with courts of first instance over inferior tribunals or
persons, and original jurisdiction over courts of first instance, when
such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the
validity of the criminal statute must usually be raised by a defendant
in the trial court and be carried regularly in review to the Supreme
Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil.,
192). But in this case where a new act seriously affected numerous
persons and extensive property rights, and was likely to cause a
multiplicity of actions, the Supreme Court exercised its discretion to
bring the issue to the act's validity promptly before it and decide in the
interest of the orderly administration of justice. The court relied by
analogy upon the cases of Ex 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 by demurrer to the petition, this is now
disclaimed on behalf of the respondents, and both parties ask a
decision on the merits. In view of the broad powers in prohibition
granted to that court under the Island Code, we acquiesce in the
desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of
preventing the inferior tribunal from usurping a jurisdiction with which it is not
legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general
rule, although there is a conflict in the cases, is that the merit of prohibition
will not lie whether the inferior court has jurisdiction independent of the
statute the constitutionality of which is questioned, because in such cases the
interior court having jurisdiction may itself determine the constitutionality of
the statute, and its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal without
resort to the writ of prohibition. But where the inferior court or tribunal derives
its jurisdiction exclusively from an unconstitutional statute, it may be
prevented by the writ of prohibition from enforcing that statute. (50 C. J.,
670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D.
C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs.
Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E.,
185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their

jurisdiction solely from Act No. 4221 which prescribes in detailed manner the
procedure for granting probation to accused persons after their conviction
has become final and before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily the execution
of the sentence is recognized and, according to a number of state courts,
including those of Massachusetts, Michigan, New York, and Ohio, the power
is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115
Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497;
People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs.
State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United
States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37
Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United
States expressed the opinion that under the common law the power of the
court was limited to temporary suspension, and brushed aside the contention
as to inherent judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses
against the criminal laws and upon conviction to impose the
punishment provided by law is judicial, and it is equally to be
conceded that, in exerting the powers vested in them on such
subject, courts inherently possess ample right to exercise reasonable,
that is, judicial, discretion to enable them to wisely exert their
authority. But these concessions afford no ground for the contention
as to power here made, since it must rest upon the proposition that
the power to enforce begets inherently a discretion to permanently
refuse to do so. And the effect of the proposition urged upon the
distribution of powers made by the Constitution will become apparent
when it is observed that indisputable also is it that the authority to
define and fix the punishment for crime is legislative and includes the
right in advance to bring within judicial discretion, for the purpose of
executing the statute, elements of consideration which would be
otherwise beyond the scope of judicial authority, and that the right to
relieve from the punishment, fixed by law and ascertained according
to the methods by it provided belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director
of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by
this court in 1915, also reached the conclusion that the power to suspend the
execution of sentences pronounced in criminal cases is not inherent in the
judicial function. "All are agreed", he said, "that in the absence of statutory
authority, it does not lie within the power of the courts to grant such
suspensions." (at p. 278.) Both petitioner and respondents are correct,

therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such
proceedings is conferred exclusively by Act No. 4221 of the Philippine
Legislature.
It is, of course, true that the constitutionality of a statute will not be
considered on application for prohibition where the question has not been
properly brought to the attention of the court by objection of some kind (Hill
vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable
that the constitutional issue has been squarely presented not only before this
court by the petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of
the court below, declined to pass upon the question on the ground that the
private prosecutor, not being a party whose rights are affected by the statute,
may not raise said question. The respondent judge cited Cooley on
Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743),
as authority for the proposition that a court will not consider any attack made
on the constitutionality of a statute by one who has no interest in defeating it
because his rights are not affected by its operation. The respondent judge
further stated that it may not motu proprio take up the constitutional question
and, agreeing with Cooley that "the power to declare a legislative enactment
void is one which the judge, conscious of the fallibility of the human
judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded
on the assumption that Act No. 4221 is constitutional. While therefore, the
court a quo admits that the constitutional question was raised before it, it
refused to consider the question solely because it was not raised by a proper
party. Respondents herein reiterates this view. The argument is advanced
that the private prosecution has no personality to appear in the hearing of the
application for probation of defendant Mariano Cu Unjieng in criminal case
No. 42648 of the Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court. Although, as a
general rule, only those who are parties to a suit may question the
constitutionality of a statute involved in a judicial decision, it has been held
that since the decree pronounced by a court without jurisdiction is void,
where the jurisdiction of the court depends on the validity of the statute in
question, the issue of the constitutionality will be considered on its being
brought to the attention of the court by persons interested in the effect to be
given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by the

proper party, it does not follow that the issue may not be here raised in an
original action of certiorari and prohibitions. It is true that, as a general rule,
the question of constitutionality must be raised at the earliest opportunity, so
that if not raised by the pleadings, ordinarily it may not be raised at the trial,
and if not raised in the trial court, it will not considered on appeal. (12 C. J., p.
786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil.,
192, 193-195.) But we must state that the general rule admits of exceptions.
Courts, in the exercise of sounds discretion, may determine the time when a
question affecting the constitutionality of a statute should be presented. (In
re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although
there is a very sharp conflict of authorities, it is said that the question may be
raised for the first time at any stage of the proceedings, either in the trial
court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held
that it is the duty of a court to pass on the constitutional question, though
raised for the first time on appeal, if it appears that a determination of the
question is necessary to a decision of the case. (McCabe's Adm'x vs.
Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs.
St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St.
Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held
that a constitutional question will be considered by an appellate court at any
time, where it involves the jurisdiction of the court below (State vs. Burke
[1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the
constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong
Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong &
Shanghai Banking Corporation, represented by the private prosecution, is not
the proper party to raise the constitutional question here a point we do not
now have to decide we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The unchallenged
rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or
will sustained, direct injury as a result of its enforcement. It goes without
saying that if Act No. 4221 really violates the constitution, the People of the
Philippines, in whose name the present action is brought, has a substantial
interest in having it set aside. Of grater import than the damage caused by
the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the wellsettled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the Government of the

Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312;
41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to
question the constitutionality of the statute was though, as a general rule,
only those who are parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held that since the decree
pronounced by a court without jurisdiction in void, where the jurisdiction of
the court depends on the validity of the statute in question, the issue of
constitutionality will be considered on its being brought to the attention of the
court by persons interested in the effect to begin the statute. (12 C.J., sec.
184, p. 766.) And, even if we were to concede that the issue was not properly
raised in the court below by the proper party, it does not follow that the issue
may not be here raised in an original action of certiorari and prohibition. It is
true that, as a general rule, the question of constitutionality must be raised at
the earliest opportunity, so that if not raised by the pleadings, ordinarily it may
not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that
the general rule admits of exceptions. Courts, in the exercise of sound
discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [19884], 95
N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp
conflict of authorities, it is said that the question may be raised for the first
time at any state of the proceedings, either in the trial court or on appeal. (12
C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court
to pass on the constitutional question, though raised for first time on appeal,
if it appears that a determination of the question is necessary to a decision of
the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674;
124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685;
113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87
S. W., 913.) And it has been held that a constitutional question will be
considered by an appellate court at any time, where it involves the jurisdiction
of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to
the power of this court to consider the constitutional question raised for the
first time before this court in these proceedings, we turn again and point with
emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the
hypothesis that the Hongkong & Shanghai Banking Corporation, represented
by the private prosecution, is not the proper party to raise the constitutional
question here a point we do not now have to decide we are of the
opinion that the People of the Philippines, represented by the Solicitor-

General and the Fiscal of the City of Manila, is such a proper party in the
present proceedings. The unchallenged rule is that the person who impugns
the validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action
is brought, has a substantial interest in having it set aside. Of greater import
than the damage caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the enforcement of an
invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine
Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of
the legislature unconstitutional in an action instituted in behalf of the
Government of the Philippines. In Attorney General vs. Perkings([1889], 73
Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through
its Attorney General, instituted quo warranto proceedings to test the right of
the respondents to renew a mining corporation, alleging that the statute
under which the respondents base their right was unconstitutional because it
impaired the obligation of contracts. The capacity of the chief law officer of
the state to question the constitutionality of the statute was itself questioned.
Said the Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their representatives; that
to an accusation by the people of Michigan of usurpation their
government, a statute enacted by the people of Michigan is an
adequate answer. The last proposition is true, but, if the statute relied
on in justification is unconstitutional, it is statute only in form, and
lacks the force of law, and is of no more saving effect to justify action
under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the
people must bow . . . The legislature and the respondents are not the
only parties in interest upon such constitutional questions. As was
remarked by Mr. Justice Story, in speaking of an acquiescence by a
party affected by an unconstitutional act of the legislature: "The
people have a deep and vested interest in maintaining all the
constitutional limitations upon the exercise of legislative powers."
(Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action
(mandamus) was brought by the Attorney-General of Kansas to test the

constitutionality of a statute of the state. In disposing of the question whether

or not the state may bring the action, the Supreme Court of Kansas said:
. . . the state is a proper party indeed, the proper party to bring
this action. The state is always interested where the integrity of its
Constitution or statutes is involved.
"It has an interest in seeing that the will of the
Legislature is not disregarded, and need not, as an
individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57
Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103
Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law
officer, its Attorney-General, or county attorney, may exercise his bet
judgment as to what sort of action he will bring to have the matter
determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by
mandamus to compel obedience to its terms (State vs. Dolley, 82
Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings
under its questionable provisions (State ex rel. vs. City of Neodesha,
3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S.
W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155
S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board
of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs.
State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind.,
339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11).
In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney,
being charged with the duty of enforcing the laws, has no right to
plead that a law is unconstitutional. In support of the argument three
decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge
of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls,
Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6
So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47
La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not
forbid a district attorney to plead that a statute is unconstitutional if he
finds if in conflict with one which it is his duty to enforce. In State ex

rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge
should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information
charging a person with a violation of the statute. In other words, a
judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party litigant.
State ex rel. Nicholls, Governor, etc., is authority for the proposition
merely that an officer on whom a statute imposes the duty of
enforcing its provisions cannot avoid the duty upon the ground that
he considers the statute unconstitutional, and hence in enforcing the
statute he is immune from responsibility if the statute be
unconstitutional. State ex rel. Banking Co., etc., is authority for the
proposition merely that executive officers, e.g., the state auditor and
state treasurer, should not decline to perform ministerial duties
imposed upon them by a statute, on the ground that they believe the
statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the
state, and, above all, to support the Constitution of the state. If, in the
performance of his duty he finds two statutes in conflict with each
other, or one which repeals another, and if, in his judgment, one of
the two statutes is unconstitutional, it is his duty to enforce the other;
and, in order to do so, he is compelled to submit to the court, by way
of a plea, that one of the statutes is unconstitutional. If it were not so,
the power of the Legislature would be free from constitutional
limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the
general proposition that the state may impugn the validity of its laws. They
have not cited any authority running clearly in the opposite direction. In fact,
they appear to have proceeded on the assumption that the rule as stated is
sound but that it has no application in the present case, nor may it be invoked
by the City Fiscal in behalf of the People of the Philippines, one of the
petitioners herein, the principal reasons being that the validity before this
court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside
said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,.
10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the
past and all that time has not been attacked as unconstitutional by the Fiscal
of Manila but, on the contrary, has been impliedly regarded by him as

constitutional, is no reason for considering the People of the Philippines

estopped from nor assailing its validity. For courts will pass upon a
constitutional questions only when presented before it in bona fide cases for
determination, and the fact that the question has not been raised before is
not a valid reason for refusing to allow it to be raised later. The fiscal and all
others are justified in relying upon the statute and treating it as valid until it is
held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act
No. 4221 is necessary to the resolution of the instant case. For, ". . . while the
court will meet the question with firmness, where its decision is
indispensable, it is the part of wisdom, and just respect for the legislature,
renders it proper, to waive it, if the case in which it arises, can be decided on
other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock.,
447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held
that the determination of a constitutional question is necessary whenever it is
essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev.
Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212
N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272];
Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt
[63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129
N. W., 605), as where the right of a party is founded solely on a statute the
validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs.
Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188
Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng
draws his privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance
of the fact that the Probation Act is a new addition to our statute books and its
validity has never before been passed upon by the courts; that may persons
accused and convicted of crime in the City of Manila have applied for
probation; that some of them are already on probation; that more people will
likely take advantage of the Probation Act in the future; and that the
respondent Mariano Cu Unjieng has been at large for a period of about four
years since his first conviction. All wait the decision of this court on the
constitutional question. Considering, therefore, the importance which the
instant case has assumed and to prevent multiplicity of suits, strong reasons
of public policy demand that the constitutionality of Act No. 4221 be now
resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S.,
500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913],
207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk
Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489;
Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng

vs. Trinidad, supra, an analogous situation confronted us. We said:

"Inasmuch as the property and personal rights of nearly twelve thousand
merchants are affected by these proceedings, and inasmuch as Act No. 2972
is a new law not yet interpreted by the courts, in the interest of the public
welfare and for the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that we may decide the
main issue. We have here an extraordinary situation which calls for a
relaxation of the general rule." Our ruling on this point was sustained by the
Supreme Court of the United States. A more binding authority in support of
the view we have taken can not be found.
We have reached the conclusion that the question of the constitutionality of
Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act
unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary
to enforce the Constitution. This court, by clear implication from the
provisions of section 2, subsection 1, and section 10, of Article VIII of the
Constitution, may declare an act of the national legislature invalid because in
conflict with the fundamental lay. It will not shirk from its sworn duty to
enforce the Constitution. And, in clear cases, it will not hesitate to give effect
to the supreme law by setting aside a statute in conflict therewith. This is of
the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature
that all reasonable doubts should be resolved in favor of the constitutionality
of a statute. An act of the legislature approved by the executive, is presumed
to be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well. "The
question of the validity of every statute is first determined by the legislative
department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10;
Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs.
Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts
sustained by the sanction of the executive. The members of the Legislature
and the Chief Executive have taken an oath to support the Constitution and it
must be presumed that they have been true to this oath and that in enacting
and sanctioning a particular law they did not intend to violate the Constitution.
The courts cannot but cautiously exercise its power to overturn the solemn
declarations of two of the three grand departments of the governments. (6
R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the
judiciary to reflect the wisdom of the people as expressed through an elective
Legislature and an elective Chief Executive. It follows, therefore, that the

courts will not set aside a law as violative of the Constitution except in a clear
case. This is a proposition too plain to require a citation of authorities.

The constitutionality of Act No. 4221 is challenged on three principal grounds:

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

"the exclusive power to grant pardons and reprieves and remit fines and
forfeitures". This power is now vested in the President of the Philippines. (Art.
VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution
differ in some respects. The adjective "exclusive" found in the Jones Law has
been omitted from the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of the offense, either
before or after conviction (Vide Constitution of the United States, Art. II, sec.
2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the
Philippines was thus empowered, like the President of the United States, to
pardon a person before the facts of the case were fully brought to light. The
framers of our Constitution thought this undesirable and, following most of
the state constitutions, provided that the pardoning power can only be
exercised "after conviction". So, too, under the new Constitution, the
pardoning power does not extend to "cases of impeachment". This is also the
rule generally followed in the United States (Vide Constitution of the United
States, Art. II, sec. 2). The rule in England is different. There, a royal pardon
can not be pleaded in bar of an impeachment; "but," says Blackstone, "after
the impeachment has been solemnly heard and determined, it is not
understood that the king's royal grace is further restrained or abridged."
(Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs.
Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake
[1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is
obvious. In England, Judgment on impeachment is not confined to mere
"removal from office and disqualification to hold and enjoy any office of honor,
trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the
Philippines) but extends to the whole punishment attached by law to the
offense committed. The House of Lords, on a conviction may, by its
sentence, inflict capital punishment, perpetual banishment, perpetual
banishment, fine or imprisonment, depending upon the gravity of the offense
committed, together with removal from office and incapacity to hold office.
(Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of
"commutation" and of the power of the executive to impose, in the pardons
he may grant, such conditions, restrictions and limitations as he may deem
proper. Amnesty may be granted by the President under the Constitution but
only with the concurrence of the National Assembly. We need not dwell at
length on the significance of these fundamental changes. It is sufficient for
our purposes to state that the pardoning power has remained essentially the
same. The question is: Has the pardoning power of the Chief Executive
under the Jones Law been impaired by the Probation Act?

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as

the Jones Law, in force at the time of the approval of Act No. 4221, otherwise
known as the Probation Act, vests in the Governor-General of the Philippines

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.

One of the counsel for respondents, in the course of his impassioned

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

". . . The benign prerogative of mercy reposed in the executive cannot be

taken away nor fettered by any legislative restrictions, nor can like power be
given by the legislature to any other officer or authority. The coordinate
departments of government have nothing to do with the pardoning power,
since no person properly belonging to one of the departments can exercise
any powers appertaining to either of the others except in cases expressly
provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . .
where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither
exercise such power itself nor delegate it elsewhere, nor interfere with or
control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases
cited.) If Act No. 4221, then, confers any pardoning power upon the courts it
is for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme
Court of the United States ruled in 1916 that an order indefinitely suspending
sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law.
ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.)
Chief Justice White, after an exhaustive review of the authorities, expressed
the opinion of the court that under the common law the power of the court
was limited to temporary suspension and that the right to suspend sentenced
absolutely and permanently was vested in the executive branch of the
government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice:
". . . and so far as the future is concerned, that is, the causing of the
imposition of penalties as fixed to be subject, by probation legislation or such
other means as the legislative mind may devise, to such judicial discretion as
may be adequate to enable courts to meet by the exercise of an enlarged but
wise discretion the infinite variations which may be presented to them for
judgment, recourse must be had Congress whose legislative power on the
subject is in the very nature of things adequately complete." (Quoted in Riggs
vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National
Probation Association and others to agitate for the enactment by Congress of
a federal probation law. Such action was finally taken on March 4, 1925
(chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by
an appropriation to defray the salaries and expenses of a certain number of
probation officers chosen by civil service. (Johnson, Probation for Juveniles
and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72
Law. ed., 309), the Supreme Court of the United States, through Chief
Justice Taft, held that when a person sentenced to imprisonment by a district
court has begun to serve his sentence, that court has no power under the

Probation Act of March 4, 1925 to grant him probation even though the term
at which sentence was imposed had not yet expired. In this case of Murray,
the constitutionality of the probation Act was not considered but was
assumed. The court traced the history of the Act and quoted from the report
of the Committee on the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 2 Session) the following
statement:
Prior to the so-called Killitts case, rendered in December, 1916, the
district courts exercised a form of probation either, by suspending
sentence or by placing the defendants under state probation officers
or volunteers. In this case, however (Ex parte United States, 242
U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72
Ann. Cas. 1917B, 355), the Supreme Court denied the right of the
district courts to suspend sentenced. In the same opinion the court
pointed out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to
enact probation legislation. In 1917, a bill was favorably reported by
the Judiciary Committee and passed the House. In 1920, the judiciary
Committee again favorably reported a probation bill to the House, but
it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal
government with reference to its treatment of those convicted of
violations of its criminal laws in harmony with that of the states of the
Union. At the present time every state has a probation law, and in all
but twelve states the law applies both to adult and juvenile offenders.
(see, also, Johnson, Probation for Juveniles and Adults [1928], Chap.
I.)
The constitutionality of the federal probation law has been sustained by
inferior federal courts. In Riggs vs. United States supra, the Circuit Court of
Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the
questions under consideration have been reviewed by the Circuit
Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the
constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President. This
case will be found to contain an able and comprehensive review of

the law applicable here. It arose under the act we have to consider,
and to it and the authorities cited therein special reference is made
(Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the
Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F.
[2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain
and unequivocal language, pointed to Congress as possessing the requisite
power to enact probation laws, that a federal probation law as actually
enacted in 1925, and that the constitutionality of the Act has been assumed
by the Supreme Court of the United States in 1928 and consistently
sustained by the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of
the United States, may legally enact a probation law under its broad power to
fix the punishment of any and all penal offenses. This conclusion is supported
by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A,
1285; 151 Pac., 698, the court said: "It is clearly within the province of the
Legislature to denominate and define all classes of crime, and to prescribe
for each a minimum and maximum punishment." And in State vs. Abbott
([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B,
1189), the court said: "The legislative power to set punishment for crime is
very broad, and in the exercise of this power the general assembly may
confer on trial judges, if it sees fit, the largest discretion as to the sentence to
be imposed, as to the beginning and end of the punishment and whether it
should be certain or indeterminate or conditional." (Quoted in State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has
defined all crimes and fixed the penalties for their violation. Invariably, the
legislature has demonstrated the desire to vest in the courts particularly
the trial courts large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be served by
vesting this power in the courts, they being in a position to best determine the
penalties which an individual convict, peculiarly circumstanced, should suffer.
Thus, while courts are not allowed to refrain from imposing a sentence
merely because, taking into consideration the degree of malice and the injury
caused by the offense, the penalty provided by law is clearly excessive, the
courts being allowed in such case to submit to the Chief Executive, through
the Department of Justice, such statement as it may deem proper (see art. 5,
Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law
provides for a penalty composed of two indivisible penalties, the courts may
allow such circumstances to offset one another in consideration of their
number and importance, and to apply the penalty according to the result of

such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera
and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the
Revised Penal Code empowers the courts to determine, within the limits of
each periods, in case the penalty prescribed by law contains three periods,
the extent of the evil produced by the crime. In the imposition of fines, the
courts are allowed to fix any amount within the limits established by law,
considering not only the mitigating and aggravating circumstances, but more
particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.)
Article 68, paragraph 1, of the same Code provides that "a discretionary
penalty shall be imposed" upon a person under fifteen but over nine years of
age, who has not acted without discernment, but always lower by two
degrees at least than that prescribed by law for the crime which he has
committed. Article 69 of the same Code provides that in case of "incomplete
self-defense", i.e., when the crime committed is not wholly excusable by
reason of the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in article 11 and
12 of the Code, "the courts shall impose the penalty in the period which may
be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking." And, in case the commission of what are
known as "impossible" crimes, "the court, having in mind the social danger
and the degree of criminality shown by the offender," shall impose upon him
either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59,
Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive
imprisonment is deducted form the entire term of imprisonment, except in
certain cases expressly mentioned (art. 29); the death penalty is not imposed
when the guilty person is more than seventy years of age, or where upon
appeal or revision of the case by the Supreme Court, all the members thereof
are not unanimous in their voting as to the propriety of the imposition of the
death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as
amended by Commonwealth Act No. 3); the death sentence is not to be
inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of
age (art. 83); and when a convict shall become insane or an imbecile after
final sentence has been pronounced, or while he is serving his sentenced,
the execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue
harshness of the penal laws is more clearly demonstrated in various other
enactments, including the probation Act. There is the Indeterminate Sentence
Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No.

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

We realize, of course, the conflict which the American cases disclose. Some
cases hold it unlawful for the legislature to vest in the courts the power to
suspend the operation of a sentenced, by probation or otherwise, as to do so
would encroach upon the pardoning power of the executive. (In re Webb
[1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9
Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev.,
150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla.
Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650;
People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St.
Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A.
[N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac.,
291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep.,
175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630;
181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs.
Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F.
[2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United
States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark.,
620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166;
122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex
parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick
[1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60;
168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371;
Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534;
35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522;
64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State
vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court
[1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399;
79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909],
75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82
Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151
Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y.,
288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel.
Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs.
Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App.
Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233
P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot
[1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B,
1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130
Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S.

W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998;
Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs.
State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932],
122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex.
Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24;
Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan
[1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich
[1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to
follow this long catena of authorities holding that the courts may be legally
authorized by the legislature to suspend sentence by the establishment of a
system of probation however characterized. State ex rel. Tingstand vs.
Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which provided for
the suspension of the execution of a sentence until otherwise ordered by the
court, and required that the convicted person be placed under the charge of a
parole or peace officer during the term of such suspension, on such terms as
the court may determine, was held constitutional and as not giving the court a
power in violation of the constitutional provision vesting the pardoning power
in the chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal
App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are
actually district and different from each other, both in origin and in nature. In
People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36
N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of
Appeals of New York said:

. . . The power to suspend sentence and the power to grant reprieves

and pardons, as understood when the constitution was adopted, are
totally distinct and different in their nature. The former was always a
part of the judicial power; the latter was always a part of the executive
power. The suspension of the sentence simply postpones the
judgment of the court temporarily or indefinitely, but the conviction
and liability following it, and the civil disabilities, remain and become
operative when judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of the offender. It
releases the punishment, and blots out of existence the guilt, so that
in the eye of the law, the offender is as innocent as if he had never
committed the offense. It removes the penalties and disabilities, and
restores him to all his civil rights. It makes him, as it were, a new
man, and gives him a new credit and capacity. (Ex parte Garland, 71
U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13
Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law.
ed., 442.)
The framers of the federal and the state constitutions were perfectly
familiar with the principles governing the power to grant pardons, and
it was conferred by these instruments upon the executive with full
knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised by
the English crown, or by its representatives in the colonies. (Ex
parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power
was understood, it did not comprehend any part of the judicial
functions to suspend sentence, and it was never intended that the
authority to grant reprieves and pardons should abrogate, or in any
degree restrict, the exercise of that power in regard to its own
judgments, that criminal courts has so long maintained. The two
powers, so distinct and different in their nature and character, were
still left separate and distinct, the one to be exercised by the
executive, and the other by the judicial department. We therefore
conclude that a statute which, in terms, authorizes courts of criminal
jurisdiction to suspend sentence in certain cases after conviction, a
power inherent in such courts at common law, which was understood
when the constitution was adopted to be an ordinary judicial function,
and which, ever since its adoption, has been exercised of legislative
power under the constitution. It does not encroach, in any just sense,
upon the powers of the executive, as they have been understood and
practiced from the earliest times. (Quoted with approval in Directors
of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265,
Carson, J., concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He

is not finally and completely exonerated. He is not exempt from the entire
punishment which the law inflicts. Under the Probation Act, the probationer's
case is not terminated by the mere fact that he is placed on probation.
Section 4 of the Act provides that the probation may be definitely terminated
and the probationer finally discharged from supervision only after the period
of probation shall have been terminated and the probation officer shall have
submitted a report, and the court shall have found that the probationer has
complied with the conditions of probation. The probationer, then, during the
period of probation, remains in legal custody subject to the control of the
probation officer and of the court; and, he may be rearrested upon the nonfulfillment of the conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally imposed upon him.
(Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete
liberty, and may be far from it. It is really a new mode of punishment,
to be applied by the judge in a proper case, in substitution of the
imprisonment and find prescribed by the criminal laws. For this
reason its application is as purely a judicial act as any other sentence
carrying out the law deemed applicable to the offense. The executive
act of pardon, on the contrary, is against the criminal law, which binds
and directs the judges, or rather is outside of and above it. There is
thus no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause. (Archer vs.
Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation
of the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L.
R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the
petitioners as authority in support of their contention that the power to grant
pardons and reprieves, having been vested exclusively upon the Chief
Executive by the Jones Law, may not be conferred by the legislature upon
the courts by means of probation law authorizing the indefinite judicial
suspension of sentence. We have examined that case and found that
although the Court of Criminal Appeals of Texas held that the probation
statute of the state in terms conferred on the district courts the power to grant
pardons to persons convicted of crime, it also distinguished between
suspensions sentence on the one hand, and reprieve and commutation of
sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the
power of the Governor to grant reprieves is settled by the decisions of

the various courts; it being held that the distinction between a

"reprieve" and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a suspension
is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In
re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7
Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict
with the power confiding in the Governor to grant commutations of
punishment, for a commutations is not but to change the punishment
assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac.,
525), the Supreme Court of Montana had under consideration the validity of
the adult probation law of the state enacted in 1913, now found in sections
12078-12086, Revised Codes of 1921. The court held the law valid as not
impinging upon the pardoning power of the executive. In a unanimous
decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well
understood meaning at the time our Constitution was adopted, and
no one of them was intended to comprehend the suspension of the
execution of the judgment as that phrase is employed in sections
12078-12086. A "pardon" is an act of grace, proceeding from the
power intrusted with the execution of the laws which exempts the
individual on whom it is bestowed from the punishment the law inflicts
for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8
Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693;
35 So., 816), a forgiveness of the offense (Cook vs. Middlesex
County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am.
Rep., 71). "Commutation" is a remission of a part of the punishment;
a substitution of a less penalty for the one originally imposed (Lee vs.
Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain,
107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's
Commentaries, 394), a postponement of execution (Carnal vs.
People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of
execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a
statute similar to our section 12078 has been determined; but the
same objections have been urged against parole statutes which vest
the power to parole in persons other than those to whom the power of
pardon is granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in the notes to

Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A.,
1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning
power of the Executive. The pardoning power, in respect to those serving
their probationary sentences, remains as full and complete as if the Probation
Law had never been enacted. The President may yet pardon the probationer
and thus place it beyond the power of the court to order his rearrest and
imprisonment.
(Riggs
vs.
United
States
[1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power
of the executive and is not for that reason void, does section 11 thereof
constitute, as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed
among three coordinate and substantially independent organs: the
legislative, the executive and the judicial. Each of these departments of the
government derives its authority from the Constitution which, in turn, is the
highest expression of popular will. Each has exclusive cognizance of the
matters within its jurisdiction, and is supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral
Legislature by the Jones Law (sec. 12) and in a unicamiral National
Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines).
The Philippine Legislature or the National Assembly may not escape its
duties and responsibilities by delegating that power to any other body or
authority. Any attempt to abdicate the power is unconstitutional and void, on
the principle that potestas delegata non delegare potest. This principle is said
to have originated with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a principle of agency,
was established by Lord Coke in the English public law in decisions
forbidding the delegation of judicial power, and found its way into America as
an enlightened principle of free government. It has since become an
accepted corollary of the principle of separation of powers. (5 Encyc. of the
Social Sciences, p. 66.) The classic statement of the rule is that of Locke,
namely: "The legislative neither must nor can transfer the power of making
laws to anybody else, or place it anywhere but where the people have."
(Locke on Civil Government, sec. 142.) Judge Cooley enunciates the
doctrine in the following oft-quoted language: "One of the settled maxims in
constitutional law is, that the power conferred upon the legislature to make
laws cannot be delegated by that department to any other body or authority.

Where the sovereign power of the state has located the authority, there it
must remain; and by the constitutional agency alone the laws must be made
until the Constitution itself is charged. The power to whose judgment,
wisdom, and patriotism this high prerogative has been intrusted cannot
relieve itself of the responsibilities by choosing other agencies upon which
the power shall be devolved, nor can it substitute the judgment, wisdom, and
patriotism of any other body for those to which alone the people have seen fit
to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed.,
Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.)
This court posits the doctrine "on the ethical principle that such a delegated
power constitutes not only a right but a duty to be performed by the delegate
by the instrumentality of his own judgment acting immediately upon the
matter of legislation and not through the intervening mind of another. (U. S.
vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not
absolute and inflexible. It admits of exceptions. An exceptions sanctioned by
immemorial practice permits the central legislative body to delegate
legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro
[1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh
vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256;
State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system
of government, that local affairs shall be managed by local authorities, and
general affairs by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation
of the municipalities exercising local self government has never been held to
trench upon that rule. Such legislation is not regarded as a transfer of general
legislative power, but rather as the grant of the authority to prescribed local
regulations, according to immemorial practice, subject of course to the
interposition of the superior in cases of necessity." (Stoutenburgh vs.
Hennick,supra.) On quite the same principle, Congress is powered to
delegate legislative power to such agencies in the territories of the United
States as it may select. A territory stands in the same relation to Congress as
a municipality or city to the state government. (United States vs. Heinszen
[1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas.,
688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49
Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation
of legislative power to the people at large. Some authorities maintain that this
may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs.
Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616).
However, the question of whether or not a state has ceased to be republican
in form because of its adoption of the initiative and referendum has been held
not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs.

Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224),
and as the constitutionality of such laws has been looked upon with favor by
certain progressive courts, the sting of the decisions of the more conservative
courts has been pretty well drawn. (Opinions of the Justices [1894], 160
Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57
Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific
States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14, paragraph 2, of
article VI of the Constitution of the Philippines provides that "The National
Assembly may by law authorize the President, subject to such limitations and
restrictions as it may impose, to fix within specified limits, tariff rates, import
or export quotas, and tonnage and wharfage dues." And section 16 of the
same article of the Constitution provides that "In times of war or other
national emergency, the National Assembly may by law authorize the
President, for a limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a declared
national policy." It is beyond the scope of this decision to determine whether
or not, in the absence of the foregoing constitutional provisions, the President
could be authorized to exercise the powers thereby vested in him. Upon the
other hand, whatever doubt may have existed has been removed by the
Constitution itself.
The case before us does not fall under any of the exceptions hereinabove
mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective
provincial boards have provided for the salary of a probation officer at
rates not lower than those now provided for provincial fiscals. Said
probation officer shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office. (Emphasis
ours.)
In testing whether a statute constitute an undue delegation of legislative
power or not, it is usual to inquire whether the statute was complete in all its
terms and provisions when it left the hands of the legislature so that nothing
was left to the judgment of any other appointee or delegate of the legislature.
(6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1),
this court adhered to the foregoing rule when it held an act of the legislature
void in so far as it undertook to authorize the Governor-General, in his
discretion, to issue a proclamation fixing the price of rice and to make the

sale of it in violation of the proclamation a crime. (See and cf. Compaia

General de Tabacos vs. Board of Public Utility Commissioners [1916], 34
Phil., 136.) The general rule, however, is limited by another rule that to a
certain extent matters of detail may be left to be filled in by rules and
regulations to be adopted or promulgated by executive officers and
administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should
take effect in their respective provinces. They are the agents or delegates of
the legislature in this respect. The rules governing delegation of legislative
power to administrative and executive officers are applicable or are at least
indicative of the rule which should be here adopted. An examination of a
variety of cases on delegation of power to administrative bodies will show
that the ratio decidendi is at variance but, it can be broadly asserted that the
rationale revolves around the presence or absence of a standard or rule of
action or the sufficiency thereof in the statute, to aid the delegate in
exercising the granted discretion. In some cases, it is held that the standard
is sufficient; in others that is insufficient; and in still others that it is entirely
lacking. As a rule, an act of the legislature is incomplete and hence invalid if it
does not lay down any rule or definite standard by which the administrative
officer or board may be guided in the exercise of the discretionary powers
delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L.
ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs.
Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and
cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case
at bar, what rules are to guide the provincial boards in the exercise of their
discretionary power to determine whether or not the Probation Act shall apply
in their respective provinces? What standards are fixed by the Act? We do
not find any and none has been pointed to us by the respondents. The
probation Act does not, by the force of any of its provisions, fix and impose
upon the provincial boards any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the language of Justice
Cardozo in the recent case of Schecter, supra, is a "roving commission"
which enables the provincial boards to exercise arbitrary discretion. By
section 11 if the Act, the legislature does not seemingly on its own authority
extend the benefits of the Probation Act to the provinces but in reality leaves
the entire matter for the various provincial boards to determine. In other
words, the provincial boards of the various provinces are to determine for
themselves, whether the Probation Law shall apply to their provinces or not
at all. The applicability and application of the Probation Act are entirely
placed in the hands of the provincial boards. If the provincial board does not
wish to have the Act applied in its province, all that it has to do is to decline to

appropriate the needed amount for the salary of a probation officer. The plain
language of the Act is not susceptible of any other interpretation. This, to our
minds, is a virtual surrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of
power to make the law, which necessarily involves a discretion as to what it
shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the
latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton
County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory
Construction, sec 68.) To the same effect are the decision of this court
in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil.,
547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz
vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court
sustained the validity of the law conferring upon the Governor-General
authority to adjust provincial and municipal boundaries. In the second case,
this court held it lawful for the legislature to direct non-Christian inhabitants to
take up their habitation on unoccupied lands to be selected by the provincial
governor and approved by the provincial board. In the third case, it was held
proper for the legislature to vest in the Governor-General authority to
suspend or not, at his discretion, the prohibition of the importation of the
foreign cattle, such prohibition to be raised "if the conditions of the country
make this advisable or if deceased among foreign cattle has ceased to be a
menace to the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the
simple transference of details of execution or the promulgation by executive
or administrative officials of rules and regulations to carry into effect the
provisions of a law. If we were, recurrence to our own decisions would be
sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29
Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu
Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31
Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as
law after it leaves the hands of the legislature. It is true that laws may be
made effective on certain contingencies, as by proclamation of the executive
or the adoption by the people of a particular community (6 R. C. L., 116, 170172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs.
Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the
United State ruled that the legislature may delegate a power not legislative
which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins.
Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to

ascertain facts is such a power which may be delegated. There is nothing

essentially legislative in ascertaining the existence of facts or conditions as
the basis of the taking into effect of a law. That is a mental process common
to all branches of the government. (Dowling vs. Lancashire Ins.
Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W.,
1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210;
Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.)
Notwithstanding the apparent tendency, however, to relax the rule prohibiting
delegation of legislative authority on account of the complexity arising from
social and economic forces at work in this modern industrial age (Pfiffner,
Public Administration [1936] ch. XX; Laski, "The Mother of Parliaments",
foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun
Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152),
the orthodox pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on the Constitution
of the United States in the following language speaking of declaration of
legislative power to administrative agencies: "The principle which permits the
legislature to provide that the administrative agent may determine when the
circumstances are such as require the application of a law is defended upon
the ground that at the time this authority is granted, the rule of public policy,
which is the essence of the legislative act, is determined by the legislature. In
other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and
that, under other circumstances, different of no action at all is to be taken.
What is thus left to the administrative official is not the legislative
determination of what public policy demands, but simply the ascertainment of
what the facts of the case require to be done according to the terms of the
law by which he is governed." (Willoughby on the Constitution of the United
States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883],
109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The
efficiency of an Act as a declaration of legislative will must, of course, come
from Congress, but the ascertainment of the contingency upon which the Act
shall take effect may be left to such agencies as it may designate." (See,
also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr
[1859], 13 Cal., 343, 258.) The legislature, then may provide that a
contingencies leaving to some other person or body the power to determine
when the specified contingencies has arisen. But, in the case at bar, the
legislature has not made the operation of the Prohibition Act contingent upon
specified facts or conditions to be ascertained by the provincial board. It
leaves, as we have already said, the entire operation or non-operation of the
law upon the provincial board. the discretion vested is arbitrary because it is
absolute and unlimited. A provincial board need not investigate conditions or
find any fact, or await the happening of any specified contingency. It is bound

by no rule, limited by no principle of expendiency announced by the

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

legal authority without consent of parliament, is illegal. In the tenth

section of the same statute it is further declared and enacted, that
"No dispensation by non obstante of or to any statute, or part thereof,
should be allowed; but the same should be held void and of no effect,
except a dispensation be allowed of in such statute." There is an
implied reservation of authority in the parliament to exercise the
power here mentioned; because, according to the theory of the
English Constitution, "that absolute despotic power, which must in all
governments reside somewhere," is intrusted to the parliament: 1 Bl.
Com., 160.

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

The principles of our government are widely different in this particular.

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

By the twentieth article of the declaration of rights in the constitution

of this commonwealth, it is declared that the power of suspending the
laws, or the execution of the laws, ought never to be exercised but by
the legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for.
Many of the articles in that declaration of rights were adopted from
the Magna Charta of England, and from the bill of rights passed in the
reign of William and Mary. The bill of rights contains an enumeration
of the oppressive acts of James II, tending to subvert and extirpate
the protestant religion, and the laws and liberties of the kingdom; and
the first of them is the assuming and exercising a power of dispensing
with and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of
rights contained in the statute is, that the exercise of such power, by

To illustrate the principle: A section of a statute relative to dogs made the

owner of any dog liable to the owner of domestic animals wounded by it for
the damages without proving a knowledge of it vicious disposition. By a
provision of the act, power was given to the board of supervisors to
determine whether or not during the current year their county should be
governed by the provisions of the act of which that section constituted a part.
It was held that the legislature could not confer that power. The court
observed that it could no more confer such a power than to authorize the
board of supervisors of a county to abolish in such county the days of grace
on commercial paper, or to suspend the statute of limitations. (Slinger vs.
Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void
for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.)
In that case a general statute formulating a road system contained a
provision that "if the county court of any county should be of opinion that the

provisions of the act should not be enforced, they might, in their discretion,
suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period
specified in such order; and thereupon order the roads to be opened and
kept in good repair, under the laws theretofore in force." Said the court: ". . .
this act, by its own provisions, repeals the inconsistent provisions of a former
act, and yet it is left to the county court to say which act shall be enforce in
their county. The act does not submit the question to the county court as an
original question, to be decided by that tribunal, whether the act shall
commence its operation within the county; but it became by its own terms a
law in every county not excepted by name in the act. It did not, then, require
the county court to do any act in order to give it effect. But being the law in
the county, and having by its provisions superseded and abrogated the
inconsistent provisions of previous laws, the county court is . . . empowered,
to suspend this act and revive the repealed provisions of the former act.
When the question is before the county court for that tribunal to determine
which law shall be in force, it is urge before us that the power then to be
exercised by the court is strictly legislative power, which under our
constitution, cannot be delegated to that tribunal or to any other body of men
in the state. In the present case, the question is not presented in the abstract;
for the county court of Saline county, after the act had been for several
months in force in that county, did by order suspend its operation; and during
that suspension the offense was committed which is the subject of the
present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S.,
687.)
True, the legislature may enact laws for a particular locality different from
those applicable to other localities and, while recognizing the force of the
principle hereinabove expressed, courts in may jurisdiction have sustained
the constitutionality of the submission of option laws to the vote of the people.
(6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely
local in character which should receive different treatment in different
localities placed under different circumstances. "They relate to subjects
which, like the retailing of intoxicating drinks, or the running at large of cattle
in the highways, may be differently regarded in different localities, and they
are sustained on what seems to us the impregnable ground, that the subject,
though not embraced within the ordinary powers of municipalities to make bylaws and ordinances, is nevertheless within the class of public regulations, in
respect to which it is proper that the local judgment should control." (Cooley
on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny
the right of local self-government and the propriety of leaving matters of
purely local concern in the hands of local authorities or for the people of small
communities to pass upon, we believe that in matters of general of general

legislation like that which treats of criminals in general, and as regards the
general subject of probation, discretion may not be vested in a manner so
unqualified and absolute as provided in Act No. 4221. True, the statute does
not expressly state that the provincial boards may suspend the operation of
the Probation Act in particular provinces but, considering that, in being vested
with the authority to appropriate or not the necessary funds for the salaries of
probation officers, they thereby are given absolute discretion to determine
whether or not the law should take effect or operate in their respective
provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to
be held in abeyance until the provincial boards should decide otherwise by
appropriating the necessary funds. The validity of a law is not tested by what
has been done but by what may be done under its provisions. (Walter E.
Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature
not only in the expression of what may be termed legislative policy but in the
elaboration and execution thereof. "Without this power, legislation would
become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It
has been said that popular government lives because of the inexhaustible
reservoir of power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that these
representatives are no further restrained under our system than by the
express language of the instrument imposing the restraint, or by particular
provisions which by clear intendment, have that effect. (Angara vs. Electoral
Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35
Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a
grant and a limitation of power and one of these time-honored limitations is
that, subject to certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and
unlawful delegation of legislative authority to the provincial boards and is, for
this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill
of Rights which prohibits the denial to any person of the equal protection of
the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the
tree grand departments of our government and on the subordinate
instrumentalities and subdivision thereof, and on many constitutional power,
like the police power, taxation and eminent domain. The equal protection of

laws, sententiously observes the Supreme Court of the United States, "is a
pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U.
S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina,
249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what
may be regarded as a denial of the equal protection of the laws in a question
not always easily determined. No rule that will cover every case can be
formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22
Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating
against some and favoring others in prohibited. But classification on a
reasonable basis, and nor made arbitrarily or capriciously, is permitted.
(Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep.,
13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666;
17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.)
The classification, however, to be reasonable must be based on substantial
distinctions which make real differences; it must be germane to the purposes
of the law; it must not be limited to existing conditions only, and must apply
equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis.,
327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State
vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural
Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup.
Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough
[1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry.
Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed.,
536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J.,
pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from
the unwarranted delegation of legislative power, although perhaps this is not
necessarily the result in every case. Adopting the example given by one of
the counsel for the petitioners in the course of his oral argument, one
province may appropriate the necessary fund to defray the salary of a
probation officer, while another province may refuse or fail to do so. In such a
case, the Probation Act would be in operation in the former province but not
in the latter. This means that a person otherwise coming within the purview of
the law would be liable to enjoy the benefits of probation in one province
while another person similarly situated in another province would be denied
those same benefits. This is obnoxious discrimination. Contrariwise, it is also
possible for all the provincial boards to appropriate the necessary funds for
the salaries of the probation officers in their respective provinces, in which
case no inequality would result for the obvious reason that probation would
be in operation in each and every province by the affirmative action of
appropriation by all the provincial boards. On that hypothesis, every person
coming within the purview of the Probation Act would be entitled to avail of

the benefits of the Act. Neither will there be any resulting inequality if no
province, through its provincial board, should appropriate any amount for the
salary of the probation officer which is the situation now and, also, if we
accept the contention that, for the purpose of the Probation Act, the City of
Manila should be considered as a province and that the municipal board of
said city has not made any appropriation for the salary of the probation
officer. These different situations suggested show, indeed, that while
inequality may result in the application of the law and in the conferment of the
benefits therein provided, inequality is not in all cases the necessary result.
But whatever may be the case, it is clear that in section 11 of the Probation
Act creates a situation in which discrimination and inequality are permitted or
allowed. There are, to be sure, abundant authorities requiring actual denial of
the equal protection of the law before court should assume the task of setting
aside a law vulnerable on that score, but premises and circumstances
considered, we are of the opinion that section 11 of Act No. 4221 permits of
the denial of the equal protection of the law and is on that account bad. We
see no difference between a law which permits of such denial. A law may
appear to be fair on its face and impartial in appearance, yet, if it permits of
unjust and illegal discrimination, it is within the constitutional prohibitions. (By
analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550;
Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543;Ex
parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware
[1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113
U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30
Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct.
Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31
Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918],
247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words,
statutes may be adjudged unconstitutional because of their effect in
operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep.,
475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78
Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal
protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights
Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs.
Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R.,
386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R.
A., 858.) Under section 11 of the Probation Act, not only may said Act be in
force in one or several provinces and not be in force in other provinces, but
one province may appropriate for the salary of the probation officer of a given
year and have probation during that year and thereafter decline to
make further appropriation, and have no probation is subsequent years.
While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a

situation which is intolerable in a government of laws, and to prove how easy

it is, under the Act, to make the guaranty of the equality clause but "a rope of
sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154;
41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case of
Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that
case, the Supreme Court of the United States affirmed the decision of this
court (18 Phil., 1) by declining to uphold the contention that there was a
denial of the equal protection of the laws because, as held in Missouri vs.
Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed.,
991), the guaranty of the equality clause does not require territorial
uniformity. It should be observed, however, that this case concerns the right
to preliminary investigations in criminal cases originally granted by General
Orders No. 58. No question of legislative authority was involved and the
alleged denial of the equal protection of the laws was the result of the
subsequent enactment of Act No. 612, amending the charter of the City of
Manila (Act No. 813) and providing in section 2 thereof that "in cases triable
only in the court of first instance of the City of Manila, the defendant . . . shall
not be entitled as of right to a preliminary examination in any case where the
prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon the other
hand, an analysis of the arguments and the decision indicates that the
investigation by the prosecuting attorney although not in the form had in
the provinces was considered a reasonable substitute for the City of
Manila, considering the peculiar conditions of the city as found and taken into
account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case
has reference to a situation where the constitution of Missouri permits
appeals to the Supreme Court of the state from final judgments of any circuit
court, except those in certain counties for which counties the constitution
establishes a separate court of appeals called St. Louis Court of Appeals.
The provision complained of, then, is found in the constitution itself and it is
the constitution that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional
and void because it is also repugnant to equal-protection clause of our
Constitution.

Section 11 of the Probation Act being unconstitutional and void for the
reasons already stated, the next inquiry is whether or not the entire Act
should be avoided.
In seeking the legislative intent, the presumption is against any
mutilation of a statute, and the courts will resort to elimination only
where an unconstitutional provision is interjected into a statute
otherwise valid, and is so independent and separable that its removal
will leave the constitutional features and purposes of the act
substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J.
Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs.
Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309;
49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs.
Moir ([1913], 25 Phil., 44, 47), this court stated the well-established
rule concerning partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic
Law, while another part is valid, the valid portion, if separable from
the valid, may stand and be enforced. But in order to do this, the valid
portion must be in so far independent of the invalid portion that it is
fair to presume that the Legislative would have enacted it by itself if
they had supposed that they could not constitutionally enact the
other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916;
128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek
Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain
to make a complete, intelligible, and valid statute, which carries out
the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.)
The void provisions must be eliminated without causing results
affecting the main purpose of the Act, in a manner contrary to the
intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617,
642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226;
26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S.,
540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22
L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou.,
439.) The language used in the invalid part of a statute can have no
legal force or efficacy for any purpose whatever, and what remains
must express the legislative will, independently of the void part, since
the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122
N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez
[1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895],
158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912;
6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act
applicable only in those provinces in which the respective provincial boards
provided for the salaries of probation officers were inoperative on
constitutional grounds, the remainder of the Act would still be valid and may
be enforced. We should be inclined to accept the suggestions but for the fact
that said section is, in our opinion, is inseparably linked with the other
portions of the Act that with the elimination of the section what would be left is
the bare idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial result of
that system. The clear policy of the law, as may be gleaned from a careful
examination of the whole context, is to make the application of the system
dependent entirely upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation officers at rates not
lower than those provided for provincial fiscals. Without such action on the
part of the various boards, no probation officers would be appointed by the
Secretary of Justice to act in the provinces. The Philippines is divided or
subdivided into provinces and it needs no argument to show that if not one of
the provinces and this is the actual situation now appropriate the
necessary fund for the salary of a probation officer, probation under Act No.
4221 would be illusory. There can be no probation without a probation officer.
Neither can there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and
visit the probationer. Every probation officer is given, as to the person placed
in probation under his care, the powers of the police officer. It is the duty of
the probation officer to see that the conditions which are imposed by the
court upon the probationer under his care are complied with. Among those
conditions, the following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful
character;
(c) Shall report to the probation officer as directed by the court or
probation officers;
(d) Shall permit the probation officer to visit him at reasonable times
at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the
probation officer concerning his conduct or condition; "(f) Shall

endeavor to be employed regularly; "(g) Shall remain or reside within

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

It is argued, however, that even without section 11 probation officers maybe

appointed in the provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to
its supervision and control, a Probation Office under the direction of a
Chief Probation Officer to be appointed by the Governor-General with
the advise and consent of the Senate who shall receive a salary of
four eight hundred pesos per annum. To carry out this Act there is
hereby appropriated out of any funds in the Insular Treasury not
otherwise appropriated, the sum of fifty thousand pesos to be
disbursed by the Secretary of Justice, who is hereby authorized to
appoint probation officers and the administrative personnel of the
probation officer under civil service regulations from among those
who possess the qualifications, training and experience prescribed by
the Bureau of Civil Service, and shall fix the compensation of such
probation officers and administrative personnel until such positions
shall have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the
foregoing section are clearly not those probation officers required to be
appointed for the provinces under section 11. It may be said, reddendo
singula singulis, that the probation officers referred to in section 10 abovequoted are to act as such, not in the various provinces, but in the central
office known as the Probation Office established in the Department of
Justice, under the supervision of the Chief Probation Officer. When the law
provides that "the probation officer" shall investigate and make reports to the
court (secs. 1 and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the
"probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to
visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on
the part of "the probation officer" concerning his conduct or condition (sec. 3,
par. 4); that the court shall notify "the probation officer" in writing of the period
and terms of probation (sec. 3, last par.), it means the probation officer who is
in charge of a particular probationer in a particular province. It never could
have been intention of the legislature, for instance, to require the probationer
in Batanes, to report to a probationer officer in the City of Manila, or to require
a probation officer in Manila to visit the probationer in the said province of
Batanes, to place him under his care, to supervise his conduct, to instruct
him concerning the conditions of his probation or to perform such other
functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many
probation officers as there are provinces or groups of provinces is, of course

possible. But this would be arguing on what the law may be or should be and
not on what the law is. Between is and ought there is a far cry. The wisdom
and propriety of legislation is not for us to pass upon. We may think a law
better otherwise than it is. But much as has been said regarding progressive
interpretation and judicial legislation we decline to amend the law. We are not
permitted to read into the law matters and provisions which are not there. Not
for any purpose not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make
the Insular Government defray the salaries of probation officers in the
provinces but to make the provinces defray them should they desire to have
the Probation Act apply thereto. The sum of P50,000, appropriated "to carry
out the purposes of this Act", is to be applied, among other things, for the
salaries of probation officers in the central office at Manila. These probation
officers are to receive such compensations as the Secretary of Justice may
fix "until such positions shall have been included in the Appropriation Act". It
was the intention of the legislature to empower the Secretary of Justice to fix
the salaries of the probation officers in the provinces or later on to include
said salaries in an appropriation act. Considering, further, that the sum of
P50,000 appropriated in section 10 is to cover, among other things, the
salaries of the administrative personnel of the Probation Office, what would
be left of the amount can hardly be said to be sufficient to pay even nominal
salaries to probation officers in the provinces. We take judicial notice of the
fact that there are 48 provinces in the Philippines and we do not think it is
seriously contended that, with the fifty thousand pesos appropriated for the
central office, there can be in each province, as intended, a probation officer
with a salary not lower than that of a provincial fiscal. If this a correct, the
contention that without section 11 of Act No. 4221 said act is complete is an
impracticable thing under the remainder of the Act, unless it is conceded that
in our case there can be a system of probation in the provinces without
probation officers.
Probation as a development of a modern penology is a commendable
system. Probation laws have been enacted, here and in other countries, to
permit what modern criminologist call the "individualization of the
punishment", the adjustment of the penalty to the character of the criminal
and the circumstances of his particular case. It provides a period of grace in
order to aid in the rehabilitation of a penitent offender. It is believed that, in
any cases, convicts may be reformed and their development into hardened
criminals aborted. It, therefore, takes advantage of an opportunity for
reformation and avoids imprisonment so long as the convicts gives promise
of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law.
ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664,

665.) The Welfare of society is its chief end and aim. The benefit to the
individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law aside
because of the repugnancy to our fundamental law.

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

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

In arriving at this conclusion, we have endeavored to consider the different

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

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

(a) The constitutional relations between the Federal and the State
governments of the United States and the dual character of the
American Government is a situation which does not obtain in the
Philippines;

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

Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law.
ed., 937, 949) and, "to keep pace with . . . new developments of
times and circumstances" (Chief Justice Waite in Pensacola Tel. Co.
vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708;
Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142),
fundamental principles should be interpreted having in view existing
local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of
prohibition is, accordingly, granted. Without any pronouncement regarding
costs. So ordered.
Avancea, C.J., Imperial, Diaz and Concepcion,
Villa-real and Abad Santos, JJ., concur in the result.

JJ.,

concur.