Supreme Court of the Philippines

65 Phil. 56

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

THE PEOPLE OF THE PHILIPPINE ISLANDS AND THE HONGKONG

& SHANGHAI BANKING CORPORATION, PETITIONERS, VS. JOSE O.
VERA, JUDGE AD INTERIM OF THE COURT OF FIRST INSTANCE OF
MANILA, AND MARIANO CIR UNJIENG, RESPONDENTS.
DECISION
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the issuance of the
writs of certiorari and of prohibition to the Court of First Instance of Manila so that this
court may review the actuations of the aforesaid Court of First Instance in criminal case
No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.",
more particularly the application of the defendant Mariano Cu Unjieng therein for
probation under the provisions of Act No. 4221, and thereafter prohibit the said Court of
First Instance from taking any further action or entertaining further the aforementioned
application for probation, to the end that the defendant Mariano Cu Unjieng may be
forthwith committed to prison in accordance with the final judgment of conviction rendered
by this court in said case (G. R. No. 41200).[1]
Petitioners herein, the People of the Philippine Islands and the Hongkong and Shanghai
Banking Corporation, are respectively the plaintiff and the offended party, and the
respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case
entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case
No. 42649 of the Court of First Instance of Manila and G. R. No. 41200 of this court.
Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the
Court of First Instance of Manila, who heard the application of the defendant Mariano Cu
Unjieng for probation in the aforesaid criminal case.
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 of the testimony and the bulk of exhibits presented, the
Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction
sentencing the defendant Mariano Cu Unjieng to an indeterminate penalty ranging from

four years and two months of prision correccional to eight years of prision mayor, to pay
the costs and with reservation of civil action to the offended party, the Hongkong and
Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the
sentence to an indeterminate penalty of from five years and six months of prision
correccional to seven years, six months and twenty-seven days of prision mayor, but
affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for
reconsideration and four successive motions for new trial which were denied on December
17,1935, and final judgment was accordingly entered on December 18, 1935. The
defendant thereupon sought to have the case elevated on certiorari to the Supreme Court
of the United States but the latter denied the petition for certiorari in November, 1936.
This court, on November 24, 1936, denied the petition subsequently filed by the defendant
for leave to file a second alternative motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by the herein
respondent Mariano Cu Unjieng on November 27, 1936, before the trial court, under the
provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent
Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of
which he was convicted, that he has no criminal record and that he would observe good
conduct in the future. The Court of First Instance of Manila, Judge Pedro Tuason presiding,
referred the application for probation to the Insular Probation Office which recommended
denial of the same on June 18, 1937. Thereafter, the Court of First Instance of Manila,
seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila 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 said Act No. 4221 endows the provincial boards with the
power to make said law effective or otherwise in their respective provinces. The private
prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the
alleged unconstitutionally of Act No. 4221, as an undue delegation of legislative power to
the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal
concurred in the opposition of the private prosecution except with respect to the questions
raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a
finding that "las pruebas no han establecido de una manera concluyente la culpabilidad del
peticionario y que todos los hechos probados no son inconsistentes o incongruentes con su
inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es inocente por

duda rational" of the crime for which he stands convicted by this court in G. R. No. 41200,
but denying the latter's petition for probation for the reason that:
"* * * este Juzgado concediera la probacion solicitada por las circunstancias y la historia
social que se han expuesto en el cuerpo de esta resolution, que hacen al peticionario
acreedor 'de la misma, una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de probacion que permite
atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y la
eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente
diferentes, en menoscabo del interes publico que demanda el respeto de las leyes y del
veredicto judicial."
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng 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 amici curiae on the ground that the motion for leave
to intervene as amid curiae was circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed the same "without mature
deliberation and purely as a matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the
issuance of an order of execution of the judgment of this court in said case and forthwith to
commit the herein respondent Mariano Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to
intervene as amici curiae aforementioned, asking that a date be set for the hearing of the
same and that, at all events, said motion should be denied with respect to certain attorneys
signing the same who were members of the legal staff of the several counsel for Mariano
Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order
requiring all parties including the movants for intervention as amici curiae to appear
before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of
Manila moved for the hearing of his motion for execution of judgment in preference to the
motion for leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu
Unjieng, he moved for the postponement of the hearing of both motions. The respondent
judge thereupon set the hearing of the motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to intervene as amici curiae as in order.
Evidence as to the circumstances under which said motion for leave to intervene as amici

curiae was signed and submitted to court was to have been heard on August 19, 1937. But
at this juncture, herein petitioners came to this court on extraordinary legal process to put
an end to what they alleged was an interminable proceeding in the Court of First Instance
of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for delay in
the execution of the sentence imposed by this Honorable Court on him, exposing the courts
to criticism and ridicule because of the apparent inability of the judicial machinery to make
effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing bef6re the trial court was accordingly suspended upon the issuance
of a temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and
prohibition, herein petitioners allege that the respondent judge has acted without
jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng
under probation for the following reasons:
(1) Under section 11 of Act No. 4221, the said Act of the Philippine Legislature is made to
apply only to the provinces of the Philippines; it nowhere states that it is to be made
applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect that in the
absence of a special provision, the term "province" may be construed to include the City of
Manila for the purpose of giving effect to laws of general application, it is also true that Act
No. 4221 is not a law of general application because it is made to apply only to those
provinces in which the respective provincial boards shall have provided for the salary of a
probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would
not be applicable to it because it has not provided for the salary of a probation officer as
required by section 11 thereof; it being immaterial that there is an Insular Probation Office
willing to act for the City of Manila, said Probation Office 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 of appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or
change the same.
III. Because the respondent judge made a 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 aver 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 each 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 Courts of First Instance of the different provinces without uniformity. In
another supplementary petition dated September 14, 1937, the Fiscal of the City of Manila,
in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first
time with the issues raised by the other petitioner regarding the constitutionality of Act No.
4221, and in the oral argument held on Qctober 6, 1937, further elaborated on the theory
that probation is a form of reprieve and therefore Act No. 4221 is an encroachment oh 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 of the executive, but also constitutes an
unwarranted delegation of legislative power and a denial of the equal protection of the
laws. On Octooer 9, 1937, two memorandums, signed jointly by the City Fiscal and the
Solicitor-General, acting in behalf of the People; of the Philippine Islands, and by counsel
for the other petitioner, the Hongkong and Shanghai Banking Corporation, one sustaining
the power of the state to impugn the validity of its own laws and the other contending that
Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented.
Another joint memorandum was 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 unlawfull 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 execution will lie, this court
nevertheless cannot exercise said jurisdiction while the Court of First Instance has
assumed jurisdiction over the same upon motion of herein petitioners themselves.
(5) that the procedure followed by the herein petitioners in seeking to deprive the trial
court of "its jurisdiction over the case and elevate the proceedings to this court, should not
be tolerated because it impairs the authority and dignity of the trial court which court
while sitting in probation cases is "a court of limited jurisdiction but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the question
submitted to and pending resolution by the trial court, the present action would not lie
because the resolution of the trial court denying probation is appealable; for although the
Probation Law does not 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 yet 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 not
able to resolve in view of the restraining order improvidently and erroneously issued by
this court.
(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of
the trial court denying probation is not final and unappealable when he presented his
answer to the motion for reconsideration and agreed to the postponement of the hearing of
the said motion.
(9) That under the supposition that the order of the trial court denying probation is not
appealable, it is incumbent upon the accused to file an action for the issuance of the writ of
certiorari with mandamus, it appearing that the trial court, although it believed that the
accused was entitled to probation, nevertheless denied probation for fear of criticism
because the accused is a rich man; and that, before a petition for certiorari grounded on an
irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon the
petitioner to file a motion for reconsideration specifying the error committed so that the
trial court could have an opportunity to correct or cure the same.
(10) That on the hypothesis that the resolution of the trial court is not appealable, the trial
court retains its jurisdiction within a reasonable time to correct or modify it in accordance
with law and justice; that this power to alter or modify an order or resolution is inherent in
the courts and may be exercised either motu proprio or upon petition of the proper party,
the petition in the latter case taking the form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as
respondents allege, said court cannot order execution of the same while it is on appeal, for
then the appeal would not be availing because the doors of. probation would be closed from
the moment the accused commences to serve his sentence (Act No:. 4221, sec. 1; U. S. vs.
Cook, 19 Fed. [2d], 827).
In their memorandums 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 the Act cannot be attacked for the first time before this court; that
prohibition is unavailable; and that, in any event, section 11 of Act No. 4221 is separable
from the rest of the Act. The last memorandum for the respondent Mariano Cu Unijeng 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 the said application assumed the task not
only of considering the merits of the application, but of passing upon the culpability of the
applicant, notwithstanding the final pronouncement of guilt by this court. (G. R. No.
41200.) Probation implies guilt by final judgment. While a probation court hearing a
probation case may look into the circumstances attending the commission of the offense,
this does not authorize it to reverse the findings and conclusions of this court, either
directly or indirectly, especially where from its own admission reliance was merely had on
the printed briefs, averments, and pleadings of the parties. As already observed by this
court in Shioji vs. Harvey ([1922], 43 Phil., 33a, 337), and reiterated in subsequent cases,
"if each and every Court of First Instance could enjoy the privilege of overruling decisions
of the Supreme Court, there would be no end to litigation, and judicial chaos would result."
A becoming modesty of inferior courts demands conscious realization of the position that
they occupy in the interrelation and operation of the integrated judicial system of the
nation.
After threshing carefully the multifarious issues raised by both counsel for the petitioners
and the respondents, this court prefers to cut the Gordian knot and take up at once the two
fundamental questions presented, namely, (1) whether or not the constitutionality of Act
No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether
or not said Act is constitutional. Consideration 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 in
appropriate cases and is necessary to a determination of the case; i. e., the issue of

constitutionality mu3t be the very lis mota presented. (McGirr vs. Hamilton and Abreu
[1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently raised in
ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies,
particularly where the remedies in the ordinary course of law even if available, are not
plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922], 42 Phil., 818), this
court held that the question of the constitutionality of a statute may be raised by the
petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the
Philippine Islands vs. Springer ([1927J, 50 Phil., 259 [affirmed in Springer vs. Government
of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an
act of the legislature unconstitutional in an action of quo warranto brought in the name of
the Government of the Philippines. It has also been held that the constitutionality of a
statute may be questioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas
Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an
application for injunction to restrain action under the challenged statute (mandatory, see
Cruz vs. Youngberg [1931], 56 Phil., 234) ; and even on an application for preliminary
injunction where the determination of the constitutional question is necessary to a decision
of the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.
(Yu Cong Eng vs.Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059;
Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac, 875; 113 A. S. R., 854; 6
Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong
Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one,
an original action for certiorari and prohibition. The constitutionality of Act No. 2972,
popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners,
and the constitutional issue was met squarely by the respondents in a demurrer. A point
was raised "relating to the propriety of the constitutional question being decided in original
proceedings in prohibition." This court decided to take up the constitutional question and,
with two justices dissenting, held that Act No. 2972 was constitutional. The case was
elevated on writ of certiorari to the Supreme Court of the United States which reversed the
judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed.,
1059.) On the question of jurisdiction, however, the Federal Supreme Court, though its
Chief Justice, said:
"By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine
supreme court is granted concurrent jurisdiction in prohibition with courts of 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 a criminal statute' must usually
be raised by a defendant in the trial court and be carried regularly in review to the
Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Eosario, 26 Phil., 192.) But in this
case where a new act seriously affected numerous persons and extensive property rights,
and was likely to cause a multiplicity of actions, the Supreme Court exercised its discretion

to bring the issue of the act's validity promptly before it and decide it in the interest of the
orderly administration of justice. The court relied by analogy upon the cases of Ex
parte Young (209 U. S., 123; 52Law. ed., 714; 13 L. R. A. [N. S.], 932; 28 Sup. Ct. Rep., 441;
14 Ann. Cas., 764; Traux vs. Raidh, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36
Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed.,
755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas., 1918A, 1024). Although
objection to the jurisdiction was raised by demurrer to the petition, this is now disclaimed
on behalf of the respondents, and both parties ask a decision on the merits. In view of
broad powers in prohibition granted to that court under the Island Code, we acquiesce in
the desire of the parties."
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of, preventing the inferior
tribunal from usurping a jurisdiction with which it is not legally vested.) (High,
Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the
cases, is that the Writ of prohibition will not lie where the inferior court has jurisdiction
independent of the statute the constitutionality of which is questioned, because in such
cases the inferior court having jurisdiction may itself determine the constitutionality of the
statute, and its decision may be subject to review, and consequently the complainant in
such cases ordinarily has adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from
an unconstitutional statute, it may be prevented by the writ of prohibition from enforcing
that statute. (50 C. J., 670. Ex parte Roundtree [1874], 51 Ala., 42; In re Macfarland, 30
App. [D. C], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799;
Penningtonvs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. EL,
185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec, 669.)
Courts of First Instance sitting in probation proceedings derive their jurisdiction solely
from Act No. 4221 which prescribes in detailed manner the procedure for granting
probation to accused persons after their conviction has become 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 a sentence is recognized and, according to a number of state
courts, including those of Massachusetts, Michigan, New York, and Ohio, the power is
inherent in the courts. (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133;
People vs.Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of
Sessions [1894], 141 N[. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the
leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A.,
1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United
States expressed the opinion that under the common law the power of the court was
limited to temporary suspension, and brushed aside the contention as to inherent judicial
power saying, through Chief Justice White:

"Indisputably under our constitutional system the right to try offenses against the criminal
laws and upon conviction to impose the punishment provided by law is judicial, and it is
equally to be conceded that, in exerting the powers vested in them on such subject, courts
inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable
them to wisely exert their authority. But these concessions afford no ground for the
contention as to power here made, since it must rest upon the proposition that the power to
enforce begets inherently a discretion to permanently refuse to do so. And the effect of the
proposition urged upon the distribution of powers made by the Constitution will become
apparent when it is observed that indisputable also is it that the authority to 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 petitioners and respondents are
correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine Legislature.
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 Mc
Glue 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 reiterate this view. The argument is advanced that the private
prosecution has no personality to appear in the hearing of the application for probation of
defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of
Manila, and hence the issue of constitutionality was not properly raised in the lower court.
Although, as a general rule, only those who are parties to a suit may question the
constitutionality of a statute involved in a judicial decision, it has been held that since the
decree pronounced by a court without jurisdiction is void, where the jurisdiction of the
court depends on the validity of the statute in question, the issue of constitutionality will be
considered on its being brought to the attention of the court by persons interested in the
effect to be given the statute. (12 C J., sec. 184, p. 766.) And, even if we were to concede
that the issue was not properly raised in the court below by the proper party, it does not
follow that the issue may not be here raised in an original action of certiorari and
prohibition. It is true that, as a general rule, the question of constitutionality must be
raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may
not be raised at the trial, and if not raised in the trial court, it will not be considered on
appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26
Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts,
in the exercise of sound discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very sharp 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 hypothesis that the Hongkong &
Shanghai Banking Corporation, represented by the private prosecution, is not the proper
party to raise the constitutional question herea point we do not now have to decidewe
are of the opinion that the People of the Philippines, represented by the Solicitor-General
and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement. It goes without saying that if Act No. 4221
really violates the Constitution, the People of the Philippines, in whose name the present

action is brought, has a substantial interest in having it set aside. Of greater import than
the damage caused by the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled
rule that the state can challenge the validity of its own laws. In Government of the
Philippine Islands vs. Springer ([1927], 50 Phil., 259 (affirmed in Springer vs. Government
of the Philippine Islands [1928], 277 U. S., 189; 72 Law. ed., 845), this court declared an act
of the legislature unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426,
428, 429), the State of Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to renew a mining corporation,
alleging that the statute under which the respondents base their right was unconstitutional
because it impaired the obligation of contracts. The capacity of the chief law officer of the
state to question the constitutionality of the statute was itself questioned. Said the
Supreme Court of Michigan, through Champlin, J.:
"* * * The idea seems to be that the people are estopped from questioning the validity of a
law enacted by their representatives; that to an accusation by the people of Michigan of
usurpation upon their government, a statute enacted by the people of Michigan is an
adequate answer. The last proposition is true, but, if the statute relied on in justification is
unconstitutional, it is a statute only in form, and lacks the force of law, and is of no more
saving effect to justify action under it than if it had never been enacted. The constitution is
the supreme law, and to its behests the courts, the legislature, and the people must bow. * *
* The legislature and the respondents are not the only parties in interest upon such
constitutional questions. As was remarked by Mr. Justice Story, in speaking of an
acquiescence by a party affected by an unconstitutional act of the legislature: 'The people
have a deep and vested interest in maintaining all the constitutional limitations upon the
exercise of legislative powers.' (Allen vs. Mckeen, 1 Sum., 314.)"
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac, 38, 40), an original action (mandamus)
was brought by the Attorney-General of Kansas to test the constitutionality of a statute of
the state. In disposing of the question whether or not the state may bring the action, the
Supreme Court of Kansas said:
"* * * The state is a proper partyindeed, the proper partyto 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, 113]'). (State vs. Lawrence, 80 Kan., 707; 103
Pac, 839.)
"Where the constitutionality of a statute is in doubt the state's law officer, its AttorneyGeneral, or county attorney, may exercise his best judgment as to what sort of action he

will bring to have the matter determined, either by quo warranto to challenge its validity
(State vs. Johnson, 61 Kan., 803; 60 Pac, 1068; 49 L. K. 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. By. Co.
[1917], 197 S. W., 1006; State vs. S. H. Kress & Co. [1934], 155 S., 823; Statevs. Walmsley
[1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d],
286; First Const. Co. of Brooklyn vs. State [1917], 221 N. Y., 295; 116 N. E., 1020;
Bush vs. State [1918], 187 Ind., 339; 119 N. E., 417; State vs. Watkins [1933], 176 La., 837;
147 S., 8, 10, 11). In the case last cited, the Supreme Court of Louisiana said:
"It is contended by counsel for Herbert Watkins that a district attorney, being charged with
the duty of enforcing the laws, has no right to plead that a law is unconstitutional. In
support of the argument, three decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222) ; State ex rel. Nicholls,
Governor vs. Shakespeare, Mayor of New Orleans (41 La. Ann., 156; 6 So., 592) ; and
State ex rel.Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. K.
A., 512). These decisions do not forbid a district attorney to plead that a statute is
unconstitutional if he finds it in conflict with one which it is his duty to enforce. In State ex
rel. Hall, District Attorney, vs. Judge, etc., the ruling was that the judge should not, merely
because he believed a certain statute to be unconstitutional, forbid the district attorney to
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 of the Probation Act
cannot be attacked for the first time before this court, that the City Fiscal is estopped from
attacking the validity of the Act and, not being authorized to enforce laws outside of the
City of Manila, cannot challenge the validity of the Act in its application outside said city.
(Additional memorandum of respondents, October 23, 1937, pp. 8, 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon in the past and all
that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the
contrary, has been impliedly regarded by him as constitutional, is no reason for considering
the People of the Philippines estopped from now assailing its validity. For courts will pass
upon a constitutional question only when presented before it in bona fide cases for
determination, and the fact that the question has not been raised before is not a valid
reason for refusing to allow it to be raised later. The 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 a
just respect for the legislature, renders it proper, to waive it, if the case in which it arises,
can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11,558; 2
Brock.. 447. Vide, also, Hoover vs.Wood [1857], 9 Ind., 286, 287.) It has been held that the
determination of a constitutional question is necessary whenever it is essential to the
decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158
App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N. Y., 1; 105 N. E., 849; Ann. Cas. 1915D, 56;
and app dism 242 U. S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520
Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co. vs. Wisconsin R. 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. Niagara F. Ins.
Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N. E., 306). There is no
doubt that the respondent Cu Unjieng draws his privilege to probation solely from Act No.
4221 now being assailed.
Apart from the foregoing considerations, this court will also take cognizance of the fact
that the Probation Act is a new addition to our statute books and its validity has never
before been passed upon by the courts; that many persons accused and convicted of crime
in the City of Manila have applied for probation; that some of them are already on
probation; that more people will likely take advantage of the Probation Act in the future;

and that the respondent Mariano Cu Unjieng has been at large for a period of about four
years since his first conviction. All await the decision of this court on the constitutional
question. Considering, therefore, the importance which the instant case has assumed and
to prevent multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500; 70 Law. od., 1059. See 6 K. 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. E. A. [N. S.], 489;
Dimayuga and Pajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng O.
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 law. It will not shirk
from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to
give effect to the supreme law by setting aside a statute in 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 government. (6 R. C.
L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to

reflect the wisdom of the people as expressed through an elective Legislature and an
elective Chief Executive. It follows, therefore, that the courts will not set aside a law as
violative of the Constitution except in a clear case. This is a proposition too plain to require
a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called
attention to the fact that the President of the Philippines had already expressed his opinion
against the constitutionality of the Probation Act, adverting that as to the Executive the
resolution of this question was a foregone conclusion. Counsel, however, reiterated his
confidence in the integrity and independence of this court. We take notice of the fact that
the President in his message dated September 1, 1937, recommended to the National
Assembly the immediate repeal of the Probation Act (No, 4221); that this message resulted
in the approval of Bill No. 2417 of the National Assembly repealing the Probation Act,
subject to certain conditions therein mentioned; but that said bill was vetoed by the
President on September 13, 1937, much against his wish, "to have stricken out from the
statute books of the Commonwealth a law * * * unfair and very likely unconstitutional." It is
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 one way or another and prevent us from taking what in our
opinion is the proper course of action to take in a given case. If it is ever necessary for us
to make any vehement 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
governmentindependent in the performance of our functions, undeterred by any
consideration, free from politics, indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said
Act encroaches upon the pardoning power of the Executive; (2) that it constitutes an undue
delegation of legislative power; and (3) that it denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones
Law, in force at the time of the approval of Act No. 4221, otherwise known as the
Probation Act, vests in the Governor-General of the Philippines "the exclusive power
to grant pardons and reprieves and remit 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 GovernorGeneral 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 parteWells [1856], 18 How., 307; 15 Law. ed.,
421; Com., vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs..
Drake [1876], 29 Ohio St., 457; 23 Am. Rep., 762.) The reason for 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, fine or imprisonment, depending upon the gravity of the offense
committed, together with removal from office and incapacity to hold office.
(Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of
"commutation" and of the power of the executive to impose, in the pardons he may
grant, such conditions, restrictions and limitations as he may deem proper. Amnesty
may be granted by the President under the Constitution but only with the
concurrence of the National Assembly. We need not dwell at length on the
significance of these fundamental changes. It is sufficient for our purposes to state
that the pardoning power has remained essentially the same. The question is: Has
the pardoning power of the Chief Executive under the Jones Law been impaired by
the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief
Executive. The exercise of the power may not, therefore, be vested in anyone else. "* * *
The benign prerogative of mercy reposed in the executive cannot be taken away nor
fettered by any legislative restrictions, nor can like power be given by the legislature to any
other officer or authority. The coordinate departments of government have nothing to do
with the pardoning power, since no person properly belonging to one of the departments
can exercise any powers appertaining to either of the others except in cases expressly
provided for by the constitution." (20 R. C. L., pp. 540, 541, and cases cited.) "* * * where
the pardoning power is conferred on the executive without express or implied limitations,
the grant is exclusive, and the legislature can neither exercise such power itself nor

delegate it elsewhere, nor interfere with or control the proper exercise thereof, * * *." (12
C. J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power
upon the courts it is for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of the
United States ruled in 1916 that an order indefinitely suspending sentence was void. (Ex
parte United States [1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A. 1917E, 1178; 37 Sup.
Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the
authorities, expressed the opinion of the court that under the common law the power of the
court was limited to temporary suspension and that the right to suspend sentence
absolutely and permanently was vested in the executive branch of the government and not
in the judiciary. But, the right of Congress to establish probation by statute was conceded.
Said the court through its Chief Justice: " * * * and so far as the future is concerned, that is,
the causing of the imposition of penalties as 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 to
Congress whose legislative power on the subject is in the very nature of things adequately
complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the
National Probation Association and others to agitate for the enactment by Congress of a
federal probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat.
at L. 1259, U. S. C. title 18, see. 724). This was followed by an appropriation to defray the
salaries and expenses of a certain number of probation officers chosen by civil service.
(Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U. S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed.,
309), the Supreme Court of the United States, through Chief Justice Taft, held that when a
person sentenced to imprisonment by a district court has begun to serve his sentence, that
court has no power under the Probation Act of March 4, 1925 to grant him probation even
though the term at which sentence was imposed had not yet expired. In this case of
Murray, the constitutionality of the Probation Act was not considered but was assumed. The
court traced the history of the Act and, quoted from the report of the Committee on the
Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress,
2d Session) the following statement:
"Prior to the so-called Killitts case, rendered in December, 1916, the district courts
exercised a form of probation either, by suspending sentence or by placing the defendants
under state probation 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 sentence. In the
same opinion the court pointed out the necessity for action by Congress if the courts were
to exercise probation powers in the future. * * *

"Since this decision was rendered, two attempts have been made to enact probation
legislation. In 1917, a bill was favorably reported by the. Judiciary Committee and passed
the House. In 1920, the Judiciary Committee again favorably reported a probation bill to
the House, but it was never reached for definite action.
"If this bill is enacted into law, it will bring the policy of the Federal government with
reference to its treatment of those convicted of violations of its criminal laws in harmony
with that of the states of the Union. At the present time every state has a probation law,
and in all but twelve states the law applies both to adult and juvenile offenders." (See,
also, Johnson, Probation for juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal
courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit
said:
"Since the passage of the Probation Act of March 4,1925, the questions under
consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F.
[2d], 590), and the constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President. This case will be found to
contain an able and comprehensive review of the law applicable here. It arose under the
act we have to consider, and to it and the authorities cited therein special reference is
made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of
Appeals of the Seventh Circuit (Kriebel vs. U. S., 10 F. [2d], 762), likewise construing the
Probation Act."
We have seen that in 1916 the Supreme Court of the United States; in plain and
unequivocal language, pointed to Congress as possessing the requisite power to enact
probation laws, that a federal probation law was actually enacted in 1925, and that the
constitutionality of the Act has been assumed by the Supreme Court of the United States in
1928 and consistently sustained by the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the United
States, may legally enact a probation law under its broad power to 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 foe 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 courtsparticularly the trial courtslarge 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
cases to submit to the Chief Executive, through the Department of Justice, such statement
as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and
aggravating circumstances are attendant in the commission of a crime and the law
provides for a penalty composed of two indivisible penalties, the courts may allow such
circumstances to offset one another in consideration of their number and importance, and
to apply the penalty according to the result of such compensation. (Art. 63, rule 4, Revised
Penal Code; U. S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64,
paragraph 7, of the Revised Penal Code empowers the courts to determine, within the
limits of each period, in case the penalty prescribed by law contains three periods, the
extent of the penalty according to the number and nature of the aggravating and mitigating
circumstances and the extent of the evil produced by the crime. In the imposition of 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 articles 11 and 12 of the Code, "the courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking." And, in case the commission of what are known as
"impossible" crimes, "the court, having in mind the social danger and the degree of
criminality shown by the offender," shall impose upon him either arresto mayor or a fine
ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is
deducted from the entire term of imprisonment, except in certain cases expressly
mentioned (art. 29) ; the death penalty is not imposed when the guilty person is more than
seventy years of age, or where upon appeal or revision of the case by the Supreme Court,
all the members thereof are not unanimous in their voting as to the propriety of the
imposition of the death penalty (art. 47,see also, sec. 133, Revised Administrative Code, as
amended by Commonwealth Act No. 3); the death sentence is not to be 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 sentence, the execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of the
penal laws is more clearly demonstrated in various other enactments, including the
probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103
and subsequently amended by Act No. 4225, establishing a system of parole (sees. 5 to 10)
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 offense
punished by the Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly imposed under the rules of the said
Code, and to a minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the
court shall sentence the accused to an indeterminate sentence, the maximum term of which
shall not exceed the maximum 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. Finally came
the (Adult) Probation Act now in Question. In this Act is again manifested the intention of
the legislature to "humanize" the penal laws. It allows, in effect, the modification in
particular cases of the penalties prescribed by law by permitting the suspension of the
execution of the judgment, in the discretion ox the trial court, after due hearing and after
investigation of the particular circumstances of the offense, the criminal record, if any, of
the convict, and his social history. The Legislature has in reality decreed that in certain
cases no punishment at all shall be suffered by the convict as long as the conditions of
probation are faithfully observed. If this be so, then, it cannot be said that the Probation
Act conies in conflict with the power of the Chief Executive to grant pardons and reprieves,
because, to use the language of the Supreme Court of New Mexico, "the element of
punishment or the penalty for the commission of a wrong, while to be declared by the
courts as a judicial function under and within the limits of law as announced by legislative
acts, concerns solely the procedure and conduct of criminal causes, with which the
executive can have nothing to do," (Ex parte Bates, supra.) In Williams vs. State ([1926],
162 Ga., 327; 133 S. E., 843), the court upheld the constitutionality of the Georgia
probation statute against the contention that it attempted to delegate to the courts the
pardoning power lodged by the constitution in the governor of the state and observed that
"while 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 impose any penalty which may be from

time to time prescribed by law and in such manner as may be defined cannot be
questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold it
unlawuful for the legislature to vest in the courts the power to suspend the operation of a
sentence, by probation or otherwise, as to do so would encroach upon the pardoning power
of the executive. (In re Webb [1895], 89 Wis., 354; 27 L. R. A., 356; 46 Am. St. Kep., 846; 62
N. W., 177; 9 Am. Crim. Rep., 7O.; State ex rel. Summer-field vs. Moran [1919], 43 Nev.,
150; 182 Pac, 927; Ex parteClendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19
L. R. A. [N. S.], 1041; 132 Am. St. Rep., 628; 97 Pac, 650; People vs. Barrett [1903], 202
111., 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., 1902; 69 Am. St.
Rep., 175; 30 S. E., 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W.,
839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; State vs. Dalton [1903], 109 Tenn., 544;
72 S. W., 456.)
Other cases, however, hold contra (Nix vs. James [1925; C C. A., 9th], 7 F. [2d], 590;
Archer vs. Snook [1926; D. C], 10 F. [2d], 567; Riggs. vs..United States [1926; C. C. A. 4th],
14]) [2d], 5; Murphy vs. State [1926], 171 Ark., 62O. 286 3. W., 871; 48 A. L. R.,
1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac, 831; ReNachnaber [1928], 89 Cal.
App., 530; 265 Pac., 392; Ex parte Be 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], 257 111.,
443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859;
St. Hilarie, Petitioner [1909], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156
Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex
rel. Bottomnly vs.District Court [1925], 73 Mont., 541; 237 Pac, 525; State vs. Everitt
[1913], 164 N. C, 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel Buckley vs. Drew
[1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl.
424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A, 1285; 151 Pac, 698; People ex
rel. Forsyth vs. Court of Sessions [1894], 141 N. Y., 288; 23 L: R. A., 856; 36 N. E., 386; 15
Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y.
Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245
App. Div., 180; 281 N. Y. Supp., 49;Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149
N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C, 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C, 466; 33 L. R. A. [N. S.],
112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. State [1854], 34 Tenn., 232;
Woods vs.State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913], 70 Tex.,
Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W.,
573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932],
122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24;

Richardson vs. Com. [1921], 131 Va., 802; 109 S. E., 460; State vs. Mallahan [1911], 65
Wash., 287; 118 Pac, 42; State ex rel. Tingstad vs.Starwich [1922], 119 Wash., 561; 206
Pac, 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities holding
that the courts may be legally authorized by the legislature to suspend sentence by their
establishment of a system of probation however characterized. State ex
rel. Tingstad vs. Starwich ([1922], 119 Wash., 561; 206 Pac, 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which provided for the
suspension of the execution of a sentence until otherwise ordered by the court, and
required that the convicted person be placed under the charge of a parole or peace 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
distinct and different from each other, both in origin and in nature. In People ex
rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R.
A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said:
"* * * The power to suspend sentence and the power to grant reprieves and pardons, as
understood when the constitution was adopted, are totally distinct and different in their
origin and nature. The former was always a part of the judicial power; the latter was always
a part of the executive power. The suspension of the sentence simply postpones the
judgment of the court temporarily or indefinitely, but the conviction and liability following
it, and all civil disabilities, remain and become operative when judgment is rendered. A
pardon reaches both the punishment prescribed for the offense and the guilt of the
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 alt his civil rights. It makes him, as it
were, a new man, and gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4
Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519;
Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
"The framers of the federal and state constitutions were perfectly familiar with the
principles governing the power to grant pardons, and it was conferred by these
instruments upon the executive with full knowledge of the law upon the subject, and the
words of the constitution were used to express the authority formerly exercised by the
English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How.,
307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any part of
the judicial functions to suspend sentence, and it was never intended that the authority to
grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that
power in regard to its own judgments, that criminal courts had so long maintained. The two
powers, so distinct and different in their nature and character, were still left separate and

distinct, the one to be exercised by the executive, and the other by the judicial department.
We therefore conclude that a statute which, in terms, authorizes -courts of criminal
jurisdiction to suspend sentence in certain cases after conviction,a power inherent in
such courts at common law, which was understood when the constitution was adopted to be
an ordinary judicial function, and which, ever since its adoption, has been exercised by the
courts, is a valid exercise of legislative power under the constitution. It does not encroach,
in any just sense, upon the powers of the executive, as they have been understood and
practiced from the earliest times." (Quoted with approval in Director of Prisons vs. Judge of
First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.)
In probation, the probationer is "in no true sense, as In pardon, a free man. He is not finally
and completely exonerated. He is not exempt from the entire punishment which the law
inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact
that he is placed on probation. Section 4 of the Act provides that the probation may be
definitely terminated and the probationer finally discharged from supervision only after the
period of probation shall have been terminated and the probation officer shall have
submitted a report, and the court shall have found that the probationer has complied with
the conditions of probation. The probationer, then, during the period of probation, remains
in legal custody subject to the control of the probation officer and of the court; and, he
may be rearrested upon the non-fulfillment of the conditions of probation and, when
rearrested, may be committed to prison to serve the sentence originally imposed upon him.
(Secs. 2, 3, 5 and 6, Act No. 4221.)
"The probation described in the act is not pardon. It is not complete liberty, and may be far
from it. It is really a new mode of punishment, to be applied by the judge in a proper case,
in substitution of the imprisonment and fine 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 moat strongly by the petitioners as authority in support of
their contention that the power to grant pardons and reprieves, having been vested
exclusively upon the Chief Executive by the Jones Law, may not be conferred by the
legislature upon the courts by means of a probation law authorizing the 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 suspension of sentence on the one hand, and reprieve and
commutation of sentence on the other. Said the court, through Harper, J.:

"That the power to suspend the sentence does not 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 held in
conflict with the power confiding in the Governor to grant commutations of punishment, for
a commutation is but to change the punishment assessed to a less punishment."
In State ex rel. Bottomly vs. District Court ([1925], 73 Mont., 541; 237 Pac, 525), the
Supreme Court of Montana had under consideration the validity of the adult probation law
of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of 1921.
The court held the law valid as not impinging upon the pardoning power of the executive.
In a unanimous decision penned by Justice Holloway, the court said:
"* * * the terms 'pardon,' 'commutation,' and 'respite' each had a wellunderstood meaning
at the time our Constitution was adopted, and no one of them was intended to comprehend
the suspension of the execution of a judgment as that phrase is employed in sections
12078-12086. A 'pardon' is an act of grace, proceeding from the power intrusted with the
execution of the laws which exempts the individual on whom it is bestowed from the
punishment the law 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 a sentence for an interval of time (4 Blackstone's
Commentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N.
Y.], 272), a temporary suspension of executon (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; 163
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 our constitutional system, the powers of government are distributed among three
coordinate and substantially independent organs: the legislative, the executive and the
judicial. Each of these departments of the government derives its authority from the
Constitution which, in turn, is the highest expression of popular will. Each has exclusive
cognizance of the matters within its jurisdiction, and is supreme within its own sphere.
The power to make lawsthe legislative poweris vested in a bicameral Legislature by the
Jones Law (sec. 12) and in a unicameral National Assembly by the Constitution (Art. VI,
sec. 1, Constitution of the Philippines). The Philippine Legislature or the National Assembly
may not escape its duties and responsibilities by delegating that power to any other body
or authority. Any attempt to abdicate the power is unconstitutional and void, on the
principle that potestas delegata non delegare potest. This principle is said to have
originated with the glossators, was introduced into English law through a misreading of
Bracton, there developed as a principle of agency, was established by Lord Coke in the
English public law in decisions forbidding the delegation of judicial power, and found its
way into America as an enlightened principle of free government. It has since become an
accepted corollary of the principle of separation of powers. (5 Encyc. of the Social
Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative
neither must nor can transfer the power of making laws to anybody else, or place it
anywhere but where the people have." (Locke on Civil Government sec. 142.) Judge Cooley
enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in
constitutional law is, that the power conferred upon the legislature to make laws cannot be
delegated by that department to any other body or authority. Where the sovereign power of
the state has located the authority, there it must remain; and by the constitutional agency
alone the laws must be made until the Constitution itself is changed. The power to whose
judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve
itself of the responsibility by choosing other agencies upon which the power shall be
devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for
those to which alone the people have seen 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 exception sanctioned by immemorial practice permits
the central legislative body to delegate legislative powers to local authorities.
(Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660 U. S. vs. Salaveria [1918], 39

Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct.
Rep., 256; State vs. Noyes [1855], 30.N. H., 279.) "It is a cardinal principle of our system of
government, that local affairs shall be managed by local authorities, and general affairs by
the central authority; and hence while the rule is also fundamental that the power, to make
laws cannot be delegated, the creation of municipalities exercising local self government
has never been held to trench upon that rule. Such legislation is not regarded as a transfer
of general legislative power, but rather as the grant of the authority to prescribe local
regulations, according to immemorial practice, subject of course to the interposition of the
superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same
principle, Congress is empowered to delegate legislative power to such agencies in the
territories of the United States as it may select. A territory stands in the same relation to
Congress as a municipality or city to the state government. (United States vs. Heinszen
[1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742.; 51 L. ed., 1098; 11 Ann. Cas., 688;
Dorr vs. United States [1904], 195 U. S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1
Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the
people at large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842;
6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann.
Cas., 1914C, 616). However, the question of whether or not a state has ceased to be
republican in form because of its adoption of the initiative and referendum has been held
not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912],
223 U. S., 118; 56 Law, ed., 377; 32 Sup. Ct. Rep., 224), and as the constitutionality of such
laws has been looked upon with favor by certain progressive courts, the sting of the
decisions of the more conservative courts has been pretty well drawn. (Opinions of the
Justices [1894], 16O.Mass., 586; 36 N. E., 488; 23 L. R. A., US; Kiernan vs. Portland [1910],
57 Ore., 454; 111 Pac, 379; 112 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 prescribe, to promulgate rules and regulations to
carry out a declared national policy." It is beyond the scope of this decision to determine
whether or not, in the absence of the foregoing constitutional provisions, the President
could be authorized to exercise the powers thereby vested in him. Upon the other hand,
whatever doubt may have existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.
The challenged section of Act No. 4221 is section 11 which reads as follows:

"This Act shall apply only in those provinces in which the respective provincial boards have
provided for the salary of a, probation officer at rates not lower than those now provided
for provincial fiscals. Said probation officers shall be appointed by the Secretary of Justice
and shall be subject to the direction of the Probation Office." (Underscoring ours.)
In testing whether a statute constitutes an undue delegation of legislative power or not, it
is usual to inquire whether the statute was complete in all its terms and provisions when it
left the hands of the legislature so that nothing was left to the judgment of any other
appointee or delegate of the legislature. (6 R. C. L., p, 165.) In United States vs. Ang Tang
Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the
legislature void in so far as it undertook to authorize the 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. Compania 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. 177179.)
For the purposes of the Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should take effect in
their respective provinces. They are the agents or delegates of the legislature in this
respect. The rules governing delegation of legislative power to administrative and
executive 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 actionor
the sufficiency thereofin 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 it 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],
364 111., 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 of the Act, the legislature does 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 a provincial board does not wish to have the
Act applied in its province, all that it has to do is to decline to appropriate the needed
amount for the salary of a probation 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 decisions of this court in
Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil, 547) ;
Rubi vs. Provincial Board of Mindoro ([1919], 39 Phil., 660), and Cruz vs. Youngberg
([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of a 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 nonChristian inhabitants to take up their habitation on unoccupied lands to be selected by the
provincial governor and approved by the provincial board. In the third case, it was held
proper for the legislature to vest in the Governor-General authority to suspend or not, at
his discretion, the prohibition of the importation of foreign cattle, such prohibition to be
raised "if the conditions of the country make this advisable or if disease among foreign
cattle has ceased to be a menace to the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the simple
transference of details of execution or the promulgation by executive or administrative
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 contended, however, that a legislative act may be made to the effect as law after it
leaves the hands of the legislature. It is true that laws may be made effective on certain
contingencies, as by proclamation of the executive or the adoption by the people of a
particular community (6 R. C. L., 116. 17O.172; Cooley, Constitutional Limitations, 8th ed.,
Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed;., 253), the
Supreme Court of the United States ruled that the legislature may delegate a power not
legislative which it may itself rightfully exercise. (Vide, also, Dowling vs. Lancashire Ins.

Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is
such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a
law. That is a mental process common to all branches of the government.
(Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis.,
616; 97 N. W., 1033; 33 L. R. A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N. W., 210;
Field vs. Clark [1892], 143 U. S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding
the apparent tendency, however, to relax the rule prohibiting delegation of legislative
authority on account of the complexity arising from social and economic forces at work in
this modern industrial age (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 en Constitutional Limitations
finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in
the following languagespeaking of declaration of legislative power to administrative
agencies: "The principle which permits the legislature to provide that the administrative
agent may determine when the circumstances are such as require the application of a law
is defended upon the ground that at the time this authority is granted, the rule of public
policy, which is the essence of the legislative act, is determined by the legislature. In other
words, the legislature, as it is its duty to do, determines that, under given circumstances,
certain executive or administrative action is to be taken, and that, under other
circumstances, different or no action at all is to be taken. What is thus left to the
administrative 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. Ill, p. 1637.) In Miller vs. Mayer, etc., of New York ([1883], 109
U. S., 385; 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The 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 G. J., p. 864; State vs. Parker [1854], 26 Vt.,
357; Blanding vs. Burr [1859], 13 Cal., 343, 358.) The legislature, then, may provide that a
law shall take effect upon the happening of future specified contingencies leaving to some
other person or body the power to determine when the specified contingency has arisen.
But, in the case at bar, the legislature has not made the operation of the Probation Act
contingent upon specified facts or conditions to be ascertained by the provincial board. It
leaves, as we have already said, the entire operation or non-operation of the law upon the
provincial boards. The discretion vested is arbitrary because it is absolute and unlimited. A
provincial board need not investigate conditions or find any fact, or await the happening: of
any specified contingency. It is bound by no rule, limited by no principle of expediency
announced by the legislature. It may take into consideration certain facts or conditions;
and, again, it may not. It may have any purpose or no purpose at all. It need not give any
reason or have any reason whatsoever for refusing or failing to appropriate any funds for
the salary of a probation officer. This is a matter which rests entirely at its pleasure. The

fact that at some future timewe cannot say whenthe 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 the legislature itself.
The various provincial boards are, in practical effect, endowed with the power of
suspending the operation of the Probation Law in their respective provinces. In some
jurisdictions, constitutions provide that laws may be suspended only by the legislature or
by its authority. Thus, section 28, article I of the Constitution of Texas provides that "No
power of suspending laws in this state shall be exercised except by the legislature"; and
section 26, article I of the Constitution of Indiana provides "That the operation of the laws
shall never be suspended, except by authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute power of suspension upon the legislature.
While it may be undoubted that the legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to certain individuals only, leaving the
law to be enjoyed by others. The suspension must be general, and cannot be made for
individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6
Am. Dec., 174, 177, 178), it was said:
"By the twentieth article of the declaration of rights in the constitution of this
commonwealth, it is declared that the power of suspending the laws, or the execution of
the laws, ought never to be exercised but by the legislature, or by authority derived from it,
to be exercised in such particular cases only as the legislature shall expressly provide for.
Many of the articles in that declaration of rights were adopted from the Magna Charta of
England, and from the bill of rights passed in the reign of William and Mary. The bill of
rights contains an enumeration of the oppressive acts of James II, tending to subvert and
extirpate the protestant religion, and the laws and liberties of the kingdom; and the 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 regal
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 any part thereof, should be allowed; but the same should be held void and of no
effect, except a dispensation be allowed of in such statute.' There is an implied reservation
of authority in the parliament to exercise the power here mentioned; because, according to
the theory of the English Constitution, 'that absolute despotic power, which must in all
governments preside somewhere,' is intrusted to the parliament: 1 Bl. Com., 160.
"The principles of our government are widely different in this particular. Here the
sovereign and absolute power resides in the people; and the legislature can only exercise
what is delegated to them according to the constitution. It is obvious that the exercise of

the power in question would be equally oppressive to the subject, and subversive of his
right to protection, 'according to standing laws,' whether exercised by one man or by a
number of men. It cannot be supposed that the people when adopting this general principle
from the English bill of rights and inserting it in our constitution, intended to bestow by
implication on the general court one of the most odious and oppressive prerogatives of the
ancient kings of England, it is manifestly contrary to the first principles of civil liberty and
natural justice, and to the spirit of our constitution and laws, that any one citizen should
enjoy privileges and advantages which are denied to all others under like circumstances; or
that any one should be subject to losses, damages, suits, or actions from which all others
under like circumstances are exempted."
To illustrate the principle: A section of. a statute relative to dogs made the owner of any
dog liable to the owner of domestic animals wounded by it for the damages without proving
a knowledge of its vicious disposition. By a provision of the act, power was given to the
board of supervisors to determine whether or not during the current year their county
should be governed by the provisions of the act of which that section constituted a part. It
was held that the legislature could not confer that power. The court observed that it could
no more confer such a power than to authorize the board of supervisors of a county to
abolish in such county the days of grace on commercial paper, or to Suspend the statute of
limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was
held void for the same reason in State vs. Field ([1853], 17 Mo., 529; 59 Am. Dec, 275.) In
that case a general statute formulating a road system contained a provision that "if the
county court of any county' should be of opinion that the provisions of the act should not be
enforced, they might, in their discretion, suspend the operation of the same for any
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 in force in their county. The act does not submit
the question to the county court as an original question, to be decided by that tribunal,
whether the act shall commence its operation within the county; but it became by its own
terms a law in every county not excepted by name in the act. It did not, then, require the
county court to do any act in order to give it effect. But being the law in the county, and
having by its provisions superseded and abrogated the inconsistent provisions of previous
laws, the county court is * * * empowered, to suspend this act and revive the repealed
provisions of the former act. When the question is before the county court for that tribunal
to determine which law shall be in force, it is urged before us that the power then to be
exercised by the court is strictly legislative power, which under our constitution, cannot be
delegated to that tribunal or to any other body of men in the state. In the present case, the
question is not presented in the abstract; for the county court of Saline county, after the act
had been for several months in force in that county, did by order suspend its operation; and
during that suspension the offense was committed which is the subject of the present
indictment * * *." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different from those applicable
to other localities and, while recognizing the force of the principle hereinabove expressed,
courts in many jurisdictions have sustained the constitutionality of the submission of option
laws to the vote of the people. (6 R. C. L., p. 171.) But option laws thus sustained treat of
subjects purely local in character, which should receive different treatment in different
localities placed under different circumstances. "They relate to subjects which, like the
retailing of intoxicating drinks, or the running at large of cattle in the highways, may be
differently regarded in different localities, and they are sustained on what seems to us the
impregnable ground, that the subject, though not embraced within the ordinary powers of
municipalities to make by-laws and ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the local judgment should control." (Cooley
on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of
local self-government and the propriety of leaving matters of purely local concern in the
hands of local authorities or for the people of small communities to pass upon, we believe
that in matters of general legislation like that which treats of criminals in general, and as
regards the general subject of probation, discretion may not be vested in a manner so
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 is conceded that a great deal of latitude should be granted to the legislature not only in
the expression of what may be termed legislative policy but in the elaboration and
execution thereof. "Without this power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government
lives because of the inexhaustible reservoir of power behind it. It is unquestionable that the
mass of powers of government is vested in the representatives of the people and that these
representatives are no further restrained under our system than by the express language of
the instrument imposing the restraint, or by particular provisions which by clear
intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Gaz., 23;
Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind
that a constitution is both a grant and a limitation of power and one of these time-honored
limitations is that, subject to certain exceptions, legislative power shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful
delegation of legislative authority to the provincial boards and is, for this reason,
unconstitutional and void.
3. It is also contended that the Probation Act violates' the provision of our Bill of
Rights which prohibits the denial to any person of the equal protection of the
laws (Art. Ill, sec. 1, subsec 1, Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the three grand
departments of our government and on the subordinate instrumentalities and subdivisions
thereof, and on many constitutional powers, like the police power, taxation and eminent
domain. The equal protection of the laws, sententiously observes the Supreme Court of the
United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886],
118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Fterley vs. North Carolina, 249 U.
S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a
denial of the equal protection of the laws is a question not always easily determined. No
rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co.
[1902], 184 U. S., 540; 22 Sup. Ct. Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others is prohibited. But classification on a
reasonable basis, and not made arbitrarily or capriciously, is permitted.
{Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. &
S. F. Ry Co. vs; Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith,
Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The 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 530552; 58 N. W., 150; .Liridsley 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. 3., 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 officerwhich is the situation nowand, also, if we accept the
contention that, for the purposes of the Probation Act, the City of Manila should be
considered as a province and that the municipal board of said city has not made any
appropriation for the salary of a probation 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 may1 be the case, it is clear that section 11 of the Probatoin Act
creates a situation in which discrimination and inequality are permitted or allowed. There
are, to be sure, abundant authorities requiring actual denial of the equal protection of the
law before courts should assume the task of setting aside a law vulnerable on that score,
but premises and circumstances considered, we are of the opinion that section 11 of Act
No. 4221 permits of the denial of the equal protection of the law and is on that account
bad. We see no difference between a law which denies equal protection and a law which
permits of such denial. A law may appear to be fair on its face and impartial in appearance,
yet, if it permits of unjust and illegal discrimination, it is within the constitutional
prohibition. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law, ed., 550;
Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100
U. S., 339; 25 Law ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567;
Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145; Yick Wo vs. Hopkins
[1886], 118 U. S., 356; 30 Law. ed., 220; Williams vs.Mississippi [1897], 170 U. S., 218; 18
Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup.
Ct. Rep. 145; 55 Law. ed., 191; Sunday Lake Iron Co. vs. 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 a law has the effect of denying the equal
protection of the law it is unconstitutional|. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S.,
3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery,
94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104;
36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said
Act be in force in one or several provinces and not be in force in the other provinces, but
one province may appropriate for the salary of a probation officer of a given yearand
have probation during that yearand thereafter decline .to make further appropriation,
and have no probation in subsequent years. While this situation goes rather to the abuse of
discretion which delegation implies, it is here indicated to show that the Probation Act
sanctions a situation which is intolerable in a government of laws, and to prove how easy it
is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer,

J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150, 154; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255.)
Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United
States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the
United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the
contention that there was a denial of the equal protection of the laws because, as held in
Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991),
the guaranty of the equality clause does not require territorial uniformity. It should be
observed, however, that this case concerns the right to preliminary investigations in
criminal cases originally granted by General Orders No. 58. No question of legislative
authority was involved and the alleged denial of the equal protection of the laws was the
result of the subsequent enactment of Act No. 612, amending the charter of the City of
Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in the
court of 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 attorneyalthough not in the form had in the
provinceswas 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 the St. Louis Court
of Appeals. The provision complained of, then, is found in the constitution itself and it is the
constitution that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void
because it is also repugnant to the equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already
stated, the next inquiry is whether or not the entire Act should be avoided.
"In seeking the legislative intent, the presumption is against any mutilation of a statute,
and the courts will resort to elimination only where an unconstitutional provision is
interjected into a statute otherwise valid, and is so independent and separable that its
removal will leave the constitutional features and purposes of the act substantially
unaffected by the process." (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. Pv. A., 485;
55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U. S., 235, 240; 73 Law.
ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs.Moir ([1913], 25

Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of
statutes in the following language:
"* * * where part of a statute is, void, as repugnant to the Organic Law, while another part
is valid, the valid portion, if separable from the invalid, may stand and be enforced. But in
order to do this, the valid portion must be so far independent of the invalid portion that it is
fair to presume that the Legislature would have enacted it by itself if they had supposed
that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200
Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek
Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete,
intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass,
132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results
affecting the main purpose of the Act, in a manner contrary to the intention of the
Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway,
58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connollyvs. Union Sewer Pipe Co., 184 U.
S., 54O. 565; People vs. Strassheim, 240 111., 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 have 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 suggestion
but for the fact that said section is, in our opinion, so 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 results of that system. The clear policy of the law, as
may be gleaned from a careful examination of the whole context, is to make the application
of the system dependent entirely upon the 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 provincesand this is the actual situation nowappropriates 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 a probation system.

Section 2 of the Act provides that the probation officer shall supervise and visit the
probationer. Every probation officer is given, as to the persons placed in probation under
his care, the powers of a police officer. It is the duty of probation officers 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;
"(h) Shall make reparation or restitution to the aggrieved parties for actual damages or
losses caused by his offense;
"(i) Shall support his wife and children;
"(j) Shall comply with such orders as the court may from time to time make; and
"(k) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,
promulgated in accordance with law."
The court is required to notify the probation 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 the court as may seem most
suitable, to bring about improvement in their conduct and condition; to report in writing to
the court having jurisdiction over said probationers at least once every two months
concerning their conduct and condition; to keep records of their work; to make such
reports as are necessary for the information of the Secretary of Justice and as the latter
may require; and to perform such other duties as are consistent with the functions of the
probation 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 Numbered Fortyone Hundred and Three, without any additional compensation."
It is argued, however, that even without section 11 probation officers may be appointed in
the provinces under section 1O.of the Act which provides as follows:
"There is hereby created in the Department of Justice and subject to its supervision and
control, a Probation 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 thousand eight hundred pesos per annum. To carry out the purposes of this
Act, there is hereby appropriated out of any funds in the Insular Treasury not otherwise
appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of Justice,
who is hereby authorized to appoint probation offieers and the administrative personnel of
the probation office under civil service regulations from among those who possess the
qualifications, training and experience prescribed by the Bureau of Civil Service, and shall
fix the compensation of such probation officers and administrative personnel until such
positions shall have been included in the Appropriation Act."
But the probation officers and the administrative personnel referred to in the foregoing
section are clearly not those probation officers required to be appointed for the provinces
under section 11. It may be said, reddendo singula singulis, that the probation officers
referred to in section 10 above-quoted are to act as such, not in the various provinces, but
in the central office known as the Probation Office established in the Department of Justice,
under the supervision of a Chief Probation Officer. When the law provides that "the
probation officer" shall investigate and make reports to the court (sees. 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 "probation officer" (sec. 3, par. c), shall allow "the probation
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 the intention of the legislature, for
instance, to require a probationer in Batanes, to report to a probation 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
purposenot 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 not the
intention of the legislature to empower the Secretary of Justice to fix the salaries of
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 is correct, the contention that without section 11 of Act No. 4221 said act ia complete
is an impracticable thing under the remainder of the Act, unless it is conceded that in our
case there can be a system of probation in the provinces without probation officers.
Probation as a development of modern penology is a commendable system. Probation laws
have been enacted, here and in other countries, to permit what modern criminologists call
the "individualization of punishment", the adjustment of the penalty to the character of the
criminal and the circumstances of his particular case. It provides a period of grace in order
to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts
may be reformed and their development into hardened criminals aborted. It, therefore,
takes advantage of an opportunity for reformation and avoids imprisonment so long as the

convict gives promise of reform. (United States vs. Murray' [1925], 275 U. S., 347, 357,
358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664,
665.) The welfare of society is its chief end and aim. The 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 repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different aspects
presented by able counsel for both parties, as well in their memorandums as in their oral
argument. We have examined the cases brought to our attention, and others we have been
able to reach in the short time at our command for the study and deliberation of this case.
In the examination of the cases and in the analysis of the legal principles involved we have
inclined to adopt the line of action which in our opinion, is supported by better reasoned
authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad
[1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by
certain adjudicated cases brought to our attention, except where the point or the principle
is settled directly or by clear implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is justified because:
(a) The constitutional relations between the Federal and the State governments of the
United States and the dual character of the American Government is a situation which does
not obtain in the Philippines;
(b) The, situation of a state of the American Union or of the District of Columbia with
reference to the Federal Government of the. United States is not the situation of a province
with respect to the Insular Government (Art. I, sec. 8, cl. 17, and 1O.h Amendment,
Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871) ;
(c) The distinct federal and state judicial organizations of the United States do not embrace
the integrated judicial system of the Philippines (Schneckenburger vs.Moran [1936], 35 Off.
Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New
York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with
* * * new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel.
Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol.
XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in
view existing local conditions and environments.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is,
accordingly, granted. Without any pronouncement regarding costs. So ordered.

Avancena, C. J., Imperial, Diaz, and Concepcion, JJ., concur.

[1]

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

VILLA-REAL and ABAD SANTOS, JJ.:

We concur in the result.
Act No. 4221 declared unconstitutional; writ granted.