G.R. No.

166715

August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners, vs. HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents. DECISION CORONA, J.: This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act (RA) 93352 (Attrition Act of 2005). RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).3 It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status.4 The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the targeted amount of tax revenue.5 The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file employees and a representative from the officials nominated by their recognized organization.6 Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions, including the issuance of rules and regulations and (6) submit an annual report to Congress.7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the implementing rules and regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee created for such purpose.9 Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best only in consideration of such rewards. Thus, the system of rewards and incentives invites corruption and undermines the constitutionally mandated duty of these officials and employees to serve the people with utmost responsibility, integrity, loyalty and efficiency. Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or distinction as to why such a system should not apply to officials and employees of all other government agencies. In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore be easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC personnel. Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the enactment and approval of the law, the creation of the congressional oversight committee permits legislative participation in the implementation and enforcement of the law. In their comment, respondents, through the Office of the Solicitor General, question the petition for being premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will necessitate the exercise of this Courts jurisdiction. Nevertheless, respondents acknowledge that public policy requires the resolution of the constitutional issues involved in this case. They assert that the allegation that the reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are distinct from those of the other government agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the executive in the implementation of its provisions. Lastly, the creation of the congressional oversight committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check to any over-accumulation of power on the part of the executive and the implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed. Actual Case And Ripeness An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question must be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act being challenged has a direct adverse effect on the individual challenging it.11 Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision of the Court.12 In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere enactment of the law even without any further overt act,13 petitioners fail either to assert any specific and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a personal stake in the outcome of this case or an injury to themselves. On this account, their petition is procedurally infirm. This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law. And where an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.14 Accountability of Public Officers Section 1, Article 11 of the Constitution states: Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead modest lives. Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the people they are called upon to serve. Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their revenue-generation capability and collection.15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an underlying principle to advance a declared public policy. Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely speculative. A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one.16 To invalidate RA 9335 based on petitioners baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it. Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service of deserving government personnel. In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court said: The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecting fraudulent attempts to evade payment of duties and taxes. In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official duties. One of these precautionary measures is embodied in Section 8 of the law: SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence. Equal Protection Equality guaranteed under the equal protection clause is equality under the same conditions and among persons similarly situated; it is equality among equals, not similarity of treatment of

persons who are classified based on substantial differences in relation to the object to be accomplished.19 When things or persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers Union,20 this Court declared: The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.21 (emphasis supplied) The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the optimization of the revenue-generation capability and collection of the BIR and the BOC.23 Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary function of generating revenues for the national government through the collection of taxes, customs duties, fees and charges.

The BIR performs the following functions: Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be headed by and subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the President upon the recommendation of the Secretary [of the DOF], shall have the following functions: (1) Assess and collect all taxes, fees and charges and account for all revenues collected; (2) Exercise duly delegated police powers for the proper performance of its functions and duties; (3) Prevent and prosecute tax evasions and all other illegal economic activities; (4) Exercise supervision and control over its constituent and subordinate units; and (5) Perform such other functions as may be provided by law.24 xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions: Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the management and control of the Commissioner of Customs, who shall be appointed by the President upon the recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the following functions: (1) Collect custom duties, taxes and the corresponding fees, charges and penalties; (2) Account for all customs revenues collected; (3) Exercise police authority for the enforcement of tariff and customs laws; (4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry; (5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of entry; (6) Administer all legal requirements that are appropriate; (7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction; (8) Exercise supervision and control over its constituent units;

(9) Perform such other functions as may be provided by law.25 xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities through which the State exercises one of its great inherent functions taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection. Undue Delegation Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate.26 It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegates authority and prevent the delegation from running riot.27 To be sufficient, the standard must specify the limits of the delegates authority, announce the legislative policy and identify the conditions under which it is to be implemented.28 RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law: SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenuegeneration capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the purpose of encouraging their officials and employees to exceed their revenue targets. Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the President to fix revenue targets: SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred to as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue targets of the year, as determined by the Development Budget and Coordinating Committee (DBCC), in the following percentages: Excess of Collection of the Excess the Revenue Targets 30% or below More than 30% Percent (%) of the Excess Collection to Accrue to the Fund 15% 15% of the first 30% plus 20% of the remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue collection target was exceeded and shall be released on the same fiscal year. Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies revenue targets as allocated among its revenue districts in the case of the BIR, and the collection districts in the case of the BOC. xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to Congress.30 Thus, the determination of revenue targets does not rest solely on the President as it also undergoes the scrutiny of the DBCC. On the other hand, Section 7 specifies the limits of the Boards authority and identifies the conditions under which officials and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the service: SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the following powers and functions: xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of collection as provided in the rules and regulations promulgated under this Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural due process: Provided, That the following exemptions shall apply: 1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no historical record of collection performance that can be used as basis for evaluation; and 2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration unless the transfer was due to nonperformance of revenue targets or potential nonperformance of revenue targets: Provided, however, That when the district or area of responsibility covered by revenue or customs officials or employees has suffered from economic difficulties brought about by natural calamities or force majeure or economic causes as may be determined by the Board, termination shall be considered only after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision shall be immediately executory: Provided, further, That the application of the criteria for the separation of an official or employee from service under this Act shall be without prejudice to the application of other relevant laws on accountability of public officers and employees, such as the Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act; xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes other than those provided by law and only after due process is accorded the employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is analogous to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil service laws.32 The action for removal is also subject to civil service laws, rules and regulations and compliance with substantive and procedural due process. At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and equity," "public convenience and welfare" and "simplicity, economy and welfare."33 In this case, the declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with public interest. Separation Of Powers Section 12 of RA 9335 provides: SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional Oversight Committee composed of seven Members from the Senate and seven Members from the House of Representatives. The Members from the Senate shall be appointed by the Senate President, with at least two senators representing the minority. The Members from the House of Representatives shall be appointed by the Speaker with at least two members representing the minority. After the Oversight Committee will have approved the implementing rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist. The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the law may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter). The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in Macalintal v. Commission on Elections34 is illuminating: Concept and bases of congressional oversight Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional perception of public interest. The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of government. x x xxxxxxx Over the years, Congress has invoked its oversight power with increased frequency to check the perceived "exponential accumulation of power" by the executive branch. By the beginning of the 20th century, Congress has delegated an enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform their functions within the authority delegated to them. x x x x x x x x x Categories of congressional oversight functions The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely: scrutiny, investigation and supervision. a. Scrutiny Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. xxx b. Congressional investigation xxx xxx

While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation involves a more intense digging of facts. The power of Congress to conduct investigation is recognized by the 1987 Constitution under section 21, Article VI, xxx xxx xxx c. Legislative supervision The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority. Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress affirmatively approves it. Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the executive branches of government as it offers lawmakers a way to delegate vast power to the executive branch or to independent agencies while retaining the option to cancel particular exercise of such power without having to pass new legislation or to repeal existing law. They contend that this arrangement promotes democratic accountability as it provides legislative check on the activities of unelected administrative agencies. One proponent thus explains: It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to say that the complexities of modern government have often led Congress-whether by actual or perceived necessity- to legislate by declaring broad policy goals and general statutory standards, leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative aims, but leaves their implementation to the judgment of parties who may or may not have participated in or agreed with the development of those aims. Consequently, absent safeguards, in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive disposes. One safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without some means of overseeing post enactment activities of the executive branch, Congress would be unable to determine whether

its policies have been implemented in accordance with legislative intent and thus whether legislative intervention is appropriate. Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge that any post-enactment measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure beyond that would undermine the separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes an impermissible evasion of the Presidents veto authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents counter that legislative veto enhances separation of powers as it prevents the executive branch and independent agencies from accumulating too much power. They submit that reporting requirements and congressional committee investigations allow Congress to scrutinize only the exercise of delegated lawmaking authority. They do not allow Congress to review executive proposals before they take effect and they do not afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto permits Congress to participate prospectively in the approval or disapproval of "subordinate law" or those enacted by the executive branch pursuant to a delegation of authority by Congress. They further argue that legislative veto "is a necessary response by Congress to the accretion of policy control by forces outside its chambers." In an era of delegated authority, they point out that legislative veto "is the most efficient means Congress has yet devised to retain control over the evolution and implementation of its policy as declared by statute." In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative veto provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings to implement the House order and the alien was ordered deported. The Board of Immigration Appeals dismissed the aliens appeal, holding that it had no power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the aliens deportation and that 244(c)(2) violated the constitutional doctrine on separation of powers. On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue of separation of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses and presentment to the President. x x x x x x x x x Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the legislative veto provisions in the Natural Gas Policy

Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing legislative veto provisions although some of these provisions required the approval of both Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even exercised.35 (emphasis supplied) In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the implementation of the said law but also to review, revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on the constitutional independence of the Commission on Elections.36 With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither necessarily constitutes an encroachment on the executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system of government. It may in fact even enhance the separation of powers as it prevents the over-accumulation of power in the executive branch. However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on Congress.37 It may not vest itself, any of its committees or its members with either executive or judicial power.38 And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under the Constitution,39 including the procedure for enactment of laws and presentment. Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: (1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation40 and (2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.42 Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class. Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative veto in the form of a congressional oversight committee is in the form of an inward-turning delegation designed to attach a

congressional leash (other than through scrutiny and investigation) to an agency to which Congress has by law initially delegated broad powers.43 It radically changes the design or structure of the Constitutions diagram of power as it entrusts to Congress a direct role in enforcing, applying or implementing its own laws.44 Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative competence.45 It can itself formulate the details or it can assign to the executive branch the responsibility for making necessary managerial decisions in conformity with those standards.46 In the latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when it formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual operation (contingent rule-making).48 Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce have the force of law and are entitled to respect.49 Such rules and regulations partake of the nature of a statute50 and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an appropriate case by a competent court.51 Congress, in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. In exercising discretion to approve or disapprove the IRR based on a determination of whether or not they conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the Constitution. Considered Opinion of Mr. Justice Dante O. Tinga Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on presentment.52 Section 1, Article VI of the Constitution states: Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. (emphasis supplied) Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in Congress which consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative veto and a congressional committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides: Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied) Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect without such presentment even if approved by both chambers of Congress. In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of Congress.54 Second, it must be presented to and approved by the President.55 As summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills: A bill is introduced by any member of the House of Representatives or the Senate except for some measures that must originate only in the former chamber. The first reading involves only a reading of the number and title of the measure and its referral by the Senate President or the Speaker to the proper committee for study. The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments, sometimes after public hearings are first held thereon. If there are other bills of the same nature or purpose, they may all be consolidated into one bill under common authorship or as a committee bill. Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its entirety, scrutinized, debated upon and amended when desired. The second reading is the most important stage in the passage of a bill. The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three days before the third reading. On the third reading, the members merely register their votes and explain them if they are allowed by the rules. No further debate is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If there are differences between the versions approved by the two chambers, a conference committee58 representing both Houses will draft a compromise measure that if ratified by the Senate and the House of Representatives will then be submitted to the President for his consideration. The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers59 The Presidents role in law-making. The final step is submission to the President for approval. Once approved, it takes effect as law after the required publication.60 Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards established in the said law, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Subject to the indispensable requisite of publication under the due process clause,61 the determination as to when a law takes effect is wholly the prerogative of Congress.62 As such, it is only upon its effectivity that a law may be executed and the executive branch acquires the duties and powers to execute the said law. Before that point, the role of the executive branch, particularly of the President, is limited to approving or vetoing the law.63 From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by the members of the executive branch charged with the implementation of the law. Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them wholesale but will do so at the proper time when an appropriate case assailing those provisions is brought before us.64 The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other provisions of the law? Will it render the entire law unconstitutional? No. Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the remainder of this Act or any provision not affected by such declaration of invalidity shall remain in force and effect. In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules: The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separability clause in a statute creates the presumption that the legislature intended separability, rather than complete nullity of the statute. To justify this result, 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 it had supposed that it could not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid statute, which carries out the legislative intent. x x x The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one another, the legislature intended the statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them. The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision from the other provisions so that the latter may continue in force and effect. The valid portions can stand independently of the invalid section. Without Section 12, the remaining provisions still constitute a complete, intelligible and valid law which carries out the legislative intent to optimize the revenue-generation capability and collection of the BIR and the BOC by providing for a system of rewards and sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board. To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two newspapers of general circulation66 and became effective 15 days thereafter.67 Until and unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional Oversight Committee. WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional Oversight Committee to approve the implementing rules and regulations of the law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force and effect. SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de-Castro, Brion, JJ., concur.

G.R. Nos. L-46076 and L-46077

June 12, 1939

THE PEOPLE OF THE PHILIPPINES, plaintifff-appellee, vs. JACOB ROSENTHAL and NICASIO OSMEA, defendants-appellants. Claro M. Recto and Hilado, Lorenzo and Hilado for appellant Rosenthal. Jose M. Casal for appellant Osmea. Office of the Solicitor-General Tuason for appellee. LAUREL, J.: Appellants, Jacob Rosenthal and Nicasio Osmea, were charged in the Court of First Instance of Manila with having violated Act No. 2581, commonly known as the Blue Sky Law, under the following informations: CASE NO. 52365 That in or about and during the period comprised between October 1, 1935 and January 22, 1936, both dates inclusive, in the City of Manila, Philippine Islands, and within the jurisdiction of this court, the said Nicasio Osmea and Jacob Rosenthal, two of ten promoters, organizers, founders and incorporators of, the former being, in addition, one of the members of the board of directors of, the O.R.O. Oil Co., Inc., a domestic corporation organized under the laws of the Philippines and registered in the mercantile registry of the Bureau of Commerce, with central office in the said city, the main objects and purposes of which were "to mine, dig for, or otherwise obtain from earth, petroleum, rock and carbon oils, natural gas, other volatile mineral substances and salt, and to manufacture, refine, prepare for market, buy, sell and transport the same in crude or refined condition", and the capital thereof in their articles of incorporation, the accused herein included, consisting of 3,000 shares without par value, 400 shares of which having been subscribed by the said accused at 200 shares each and paid partly by them at the price of only P5 per share, according to the said agreement which shares were speculative securities, because the value thereof materially depended upon proposed promise for future promotion and development of the oil business above mentioned rather than on actual tangible assets and conditions thereof, did then and there, with deliberate intent of evading the provisions of sections 2 and 5 of the said Act No. 2581, and conspiring and confederating together and helping each other, willfully, unlawfully and feloniously trade in, negotiate and speculate with, their shares aforesaid, by making personally or through brokers or agents repeated and successive sales of the said shares at a price ranging from P100 to P300 per share, as follows:

The accused Nicasio Osmea sold 163 shares to nine different parties, and the accused Jacob Rosenthal sold 21 shares to seven others, without first obtaining the corresponding written permit or license from the Insular Treasurer of the Commonwealth of the Philippines, as by law required. CASE NO. 52366 That in or about and during the period comprised between October 1, 1935, and January 22, 1936, both dates inclusive, in the City of Manila, Philippine Islands, and within the jurisdiction of this court, the said Nicasio Osmea and Jacob Rosenthal, two of the ten promoters, organizers, founders and incorporators of, the former being, in addition, one of the members of the board of directors of, the South Cebu Oil Co., Inc., a domestic corporation organized under the laws of the Philippines and registered in the mercantile registry of the Bureau of Commerce, with central office in the said city, the main objects and purposes of which were "to mine, dig for, or otherwise obtain from earth, petroleum, rock or carbon oils, natural gas, other volatile mineral substances and salt, and to manufacture, refine, prepare for market, buy, sell and transport the same in crude and refined condition", and the capital stock of which, as per agreement of all the incorporators thereof in their articles of incorporation, the accused herein included, consisting of 2,800 shares without par value, 200 shares of which having been subscribed by the accused Nicasio Osmea, and 100 shares of which having been subscribed by the accused Jacob Rosenthal and paid by both at the price of only P5 per share, according to the said agreement, which shares were speculative securities, because the value thereof materially depended upon proposed promise of future promotion and development of the oil business above mentioned rather than on actual tangible assets and conditions thereof, did then and there, with deliberate intent of evading the provisions of sections 2 and 5 of Act No. 2581, and conspiring and confederating together and helping one another, willfully, unlawfully and feloniously trade in, negotiate and speculate with, their shares aforesaid, by making personally or through brokers or agents repeated and successive sales of the said shares at a price ranging from P100 to P300 per share, as follows: The accused Nicasio Osmea sold 185 shares to nine different parties, and the accused Jacob Rosenthal sold 12 shares to seven others, without first obtaining the corresponding written permit or license form the Insular Treasurer of the Commonwealth of the Philippines, as by law provided. Upon motion of Jacob Rosenthal, the Court of First Instance of Manila granted him separate trial although, when the cases were called for hearing, the court acceded to the motion of the prosecution that the two cases be tried jointly inasmuch as the evidence to be adduced by the government therein was the same, without prejudice to allowing the defendants to present their proof separately. After trial, the lower court, on March 22, 1937, in separate decisions, found the defendants guilty as charged in the informations. In case No. 52365 Jacob Rosenthal was sentenced to pay a fine of P500, with subsidiary imprisonment in case of insolvency, and to pay one-half of the costs; Nicasio Osmea was sentenced to pay a fine of P1,000, with subsidiary imprisonment in case of insolvency, and to pay one-half of the costs. In case No. 52366 Jacob Rosenthal was sentenced to pay a fine of P500, with subsidiary imprisonment in case of

insolvency, and to pay one-half of the costs; Nicasio Osmea was sentenced to pay a fine of P2,000, with subsidiary imprisonment in case of insolvency, and to pay one-half of the costs. The defendants duly perfected their appeal from these judgments and the cases were originally elevated to the Court of Appeals but, upon motion of the Solicitor-General, the same were forwarded to this court in view of the fact that the constitutionality of Act No. 2581 has been put in issue by appellants. Two separate briefs have been filed by Rosenthal and Osmea. In the brief for appellant Rosenthal the following "joint assignment of errors" is made: 1. In declaring that according to the report of the geologist contracted by the O.R. Oil Co. and the South Cebu Oil Co. to explore the properties leased to said companies, "no habia ninguna indicacion de que hubiese petroleo en aquellos terrenos", when in truth what the report stated was that in so far as the O.R.O. Oil Co. land was concerned, the territory covered by the lease if full of possibilities; and with respect to the South Cebu Oil Co. lease, that no further investigations and expenses be made "unless favorable test results are obtained on the northern lease." 2. In declaring that the exploration leases were, subsequent to the findings of the geologist, cancelled by the government, implying thereby that as no oil was found in said lands, the leases were cancelled; when in truth the cancellation was based on supposed violation of those provisions of the corporation law prohibiting the setting up of interlocking directorates. 3. In declaring that the defendant, of his 200 shares of stock in the O.R.O. Oil Co., sold twenty-one shares to different persons and on different dates, one share having been sold directly to one E.F. Pimley; five, thru a firm of brokers known as Mackay & McCormick, to Arthur Hoyer, Wm. Scheunig, and Modesto Bautista, in the proportion of two, two and one, respectively; and fifteen shares directly to Henry J. Belden, R.T. Fitzimmons and D.P. O'Brien, in the proportion of five shares to each of them when in truth only that to E.F. Pimley was sold to the latter by the defendant, while those eventually transferred to Hoyer, Scheunig and Bautista were sold directly to the said firm Mackay & McCormick, which bought them on its own risk and account, and the remaining fifteen transferred to Belden, O'Brien, and Fitzimmons were loaned by Rosenthal to Nicasio Osmea, who was not until now either returned those shares or paid their value. 4. In also declaring that of his 100 shares of stock in the South Cebu Oil Co., the defendant sold twelve to various persons and on different dates, when in truth only one of these shares was sold by the defendant to E.F. Pimley, and the remaining eleven, two of which were transferred to Arthur Hoyer, two to William Scheunig, one to Jose de la Fuente, one to Crispin Llamado, one to A.M. Opisso, and four to Ines Galano, were sold and transferred, in one single transaction, to the said firm of brokers directly, which firm bought said shares on its own risk and account. 5. In declaring that the shares sold to Mackay & McCormick were brought by the latter on credit at P250 each, to be resold by it at P300 each, and that out of the proceeds of the sale of these shares the defendant received the price agreed upon between him and the said brokerage firm, or P250 per share, when in truth and in fact there was no agreement

between the parties as to whether the said firm was to sell said shares to others or whether those shares were to be kept and retained by it on its own risk and account. 6. In declaring that the corporations had not begun exploration work on the territory covered by their leases, and that they had no tangible properties. 7. In declaring that while the defendant needed no permit to sell his own stock, the corporations as issuer being the ones bound to obtain the permit required by the Blue Sky Law, nevertheless he (the defendant) was guilty of a violation of said law because the possession of the shares held and sold by him was not in good faith, in that his acquisition thereof was not made in the ordinary and normal course of the business of the corporations, but that said shares were purchased to indirectly promote the enterprise for which the corporations were formed; the said defendant having paid in full to the corporations the value of said shares of stock. 8. In holding as proven that the possession of the defendant of his own stock, which he paid for in full, was not a possession in good faith, because he, as an incorporator (fundador), should have known that no permit in writing had been issued the corporations by the Insular Treasurer for the sale of said stock. 9. In overruling the objection to the admission of Exhibit 1-b, and in holding that a permit had not been issued by the Insular Treasurer for the sale of the stocks of the corporations. 10. In holding that there were repeated and successive sales made by the defendant Rosenthal of his own shares of stock. 11. In holding that although the defendant was the absolute owner of the stock he sold, his repeated and successive sales of such stock prove that this claim of ownership (esta pretension de propriedad) was but a means employed by him to sell said stock at prices very much higher than those he paid for them. 12. In holding that said stock was sold by the defendant without the required permit having been first issued by the Insular Treasurer, and that the sale was effected as if such permit had been actually issued (como si en realidad pudieran venderse por haberse expedido tal permiso). 13. In holding that as a result of an investigation conducted by the City Fiscal, the defendant refunded to Belden, O'Brien and Fitzimmons and others the amount they paid for the stock they purchased. 14. In holding that the opinion given by the Chief of the Insurance Division of the Office of the Insular Treasurer to the effect that the defendant could sell the said stock without a permit as long as no false representations were made by the said defendant, can not and does not exempt the latter from criminal responsibility even though no false representations whatsoever were made by the aforesaid defendant.

15. In holding that the prima facie presumption in section 8 of the law to the effect that the claim of ownership is not bona fide when repeated and successive sales of such stock are effected, has been totally destroyed by the fact that said stock absolutely belongs to the defendant, and in not further holding that because of such absolute ownership the defendant could have legally disposed of such stock in as many sales as he saw fit without any permit from the Insular Treasurer. 16. In not holding that the Blue Sky Law contravenes the constitutional provisions of the Jones Act in so far as such law constitutes an undue delegation of legislative powers to the Insular Treasurer, and in so far as it does not afford equal protection before the law. 17. In not absolving the defendant. In the brief for appellant Osmea the following "relacion conjunta de errores" is in turn submitted: 1. Al no sobreseer esta causa despues de promulgada la Ley No. 83 del Commonwealth, no obstante haberse llamado su atencion al hecho de que esta Ley derogaba la Ley No. 2581 de la Legislatura Filipina, bajo cuyas disposiciones ha sido procesado el acusado. 2. Al condenar al acusado por infraccion de la "Blue Sky Law", no obstante reconocerse en la decision que consta en las pruebas que el acusado Osmea no ha of recido en venta ninguna de aquellas acciones, ni ha hecho manifestaciones falsas a nadie para poder venderlas, y que la mayor parte, si no todos los que las compraron, estaban satisfechos de la inversion de su dinero en la adquisicion de tales acciones. 3. Al condenar al acusado por haber vendido acciones especulativas sin licencia, cuando no se probo: (a) que las acciones de la O.R.O. Oil Co., Inc., y de la South Cebu Oil Co., Inc., eran especulativas por su naturaleza, y (b) que el acusado Osmea carecia de licencia para venderlas. 4. Al declarar que la posesion por el acusado Osmea de sus acciones de la O.R.O. Oil Co., Inc., y de la South Cebu Oil Co., Inc., no era de buena fe y que no las habia adquirido por su propia cuenta sino para la promocion indirecta de un provecto de negocio o empresa especulativa. 5. Al no declarar que la "Blue Sky Law" es contraria a las normas constitucionales que gozaba al tiempo de su promulgacion : (1) porque contiene en sus disposiciones una delegacion indebida de facultades legislativas; (2) porque es vaga e incierte en sus disposiciones y, por tanto, nula; y (3) porque infringe el derecho de igual proteccion ante la ley, viola la libertad de contratacion y contraviene el derecho de adquirir, gozar y disponer libremente de la propriedad privada, siendo su promulgacion, por tanto, un acto de opresion y de verdadera tirania. 6. Al no absolveral acusado Nicasio Osmea.. To meet the foregoing errors assigned by the appellants, plaintiff-appellee contends:

(a) That the enactment of Commonwealth Act No. 83 did not have the effect of relieving appellants from criminal liability. (b) That the appellants acted as promoters of the O.R.O. Oil Co. and the South Cebu Oil Co. (c) That the shares of the two corporations are speculative in nature. (d) That the appellants sold their shares in said corporations without permit or knowing that the latter did not have the permit required by law. (e) That the appellants are not entitled to the exemption provided in section 8 of the Blue Sky Law (Act No. 2581). (f) That the Blue Sky Law is valid and constitutional. Most of the errors assigned by the appellants deal with questions of fact. This is particularly true with reference to errors one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve and thirteen of appellant Jacob Rosenthal, and error four of appellant Nicasio Osmea. There is no material discrepancy regarding the facts, and we shall proceed to consider the legal questions propounded, which are in the main set forth by the Solicitor-General in his brief. It is contended by the appellants that Act No. 2581 is unconstitutional on three grounds. (1) That it constitutes an undue delegation of legislative authority to the Insular Treasurer: (2) that it does not afford equal protection before the law; and (3) that it is vague and ambiguous. Under section 2 of Act No. 2581, every person, partnership, association, or corporation attempting to offer to sell in the Philippines speculative securities of any kind or character whatsoever, is under obligation to file previously with the Insular Treasurer the various documents and papers enumerated therein and to pay the required tax of twenty pesos. Certain securities listed in section 3 are exempted from the operation of the Act. Section 5 imposes upon the Insular Treasurer the mandatory duty to examine the statements and documents thus filed and the additional duty to make or cause to be made, if deemed advisable by him, a detailed examination of the affairs of the applicant. Section 5 also provides that "whatever the said Treasurer of the Philippine Islands is satisfied, either with or without the examination herein provided, that any person, partnership, association or corporation is entitled to the right to offer its securities as above defined and provided for sale in the Philippine Islands, he shall issue to such person, partnership, association or corporation a certificate or permit reciting that such person, partnership, association or corporation has complied with the provisions of this Act, and that such person, partnership, association or corporation, its brokers or agents are entitled to offer the securities named in said certificate or permit for sale"; that "said Treasurer shall furthermore have authority, whenever in his judgment it is in the public interest, to cancel said certificate or permit", and that "an appeal from the decision of the Insular Treasurer may be had within the period of thirty days to the Secretary of Finance." Appellants argue that, while Act No. 2581 empowers the Insular Treasurer to issue and cancel certificates or permits for the sale of speculative securities, no standard or rule is fixed in the Act

which can guide said official in determining the cases in which a certificate or permit ought to be issued, thereby making his opinion the sole criterion in the matter of its issuance, with the result that, legislative powers being unduly delegated to the Insular Treasurer, Act No. 2581 is unconstitutional. We are of the opinion that the Act furnishes a sufficient standard for the Insular Treasurer to follow in reaching a decision regarding the issuance or cancellation of a certificate or permit. The certificate or permit to be issued under the Act must recite that the person, partnership, association or corporation applying therefor "has complied with the provisions of this Act", and this requirement, construed in relation to the other provisions of the law, means that a certificate or permit shall be issued by the Insular Treasurer when the provisions of Act No. 2581 have been complied with. Upon the other hand, the authority of the Insular Treasurer to cancel a certificate or permit is expressly conditioned upon a finding that such cancellation "is in the public interest." In view of the intention and purpose of Act No. 2581 to protect the public against "speculative schemes which have no more basis than so many feet of blue sky" and against the "sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines, and other like fraudulent exploitations", we incline to hold that "public interest" in this case is a sufficient standard to guide the Insular Treasurer in reaching a decision on a matter pertaining to the issuance or cancellation of certificates or permits. As we observed in the case of People vs. Fernandez and Trinidad (G.R. No. 45655, June 15, 1938), "siendo el objecto de la ley el evitar especulaciones ruinosas, es claro que el interes publico, es, y debe ser la razon en que el Tesorero Insular deba basar sus resoluciones." And the term "public interest" is not without a settled meaning. Appellant insists that the delegation of authority to the Commission is invalid because the stated criterion is uncertain. That criterion is the public interest. It is a mistaken assumption that this is a mere general reference to public welfare without any standard to guide determinations. The purpose of the Act, the requirement it imposes, and the context of the provision in question show the contrary. . . . (New York Central Securities Corporation vs. U.S.A., 287 U.S., 12, 24, 25; 77 Law. ed., 138, 145, 146.) (See also Schenchter Poultry Corporation vs. U.S., 295 U.S., 495; 540; 79 Law. ed., 1570, 1585; Ferrazzini vs. Gsell, 34 Phil., 697, 711, 712.) In this connection, we cannot overlook the fact that the Act No. 2581 allows an appeal from the decision of the Insular Treasurer to the Secretary of Finance. Hence, it cannot be contended that the Insular Treasurer can act and decide without any restraining influence. The theory of the separation of powers is designed by its originators to secure action and at the same time to forestall over action which necessarily results from undue concentration of powers, and thereby obtain efficiency and prevent despotism. Thereby, the "rule of law" was established which narrows the range of governmental action and makes it subject to control by certain legal devices. As a corollary, we find the rule prohibiting delegation of legislative authority, and from the earliest time American legal authorities have proceeded on the theory that legislative power must be exercised by the legislative alone. It is frankness, however, to confess that as one delves into the mass of judicial pronouncements, he finds a great deal of confusion. One thing, however, is apparent in the development of the principle of separation of powers and that is that the maximum of delegatus non potest delegare or delegata potestas non potest delegare, attributed to Bracton (De Legibus et Consuetudinious Angliae, edited by G.E. Woodbine, Yale University Press [1922], vol. 2, p.167) but which is also recognized in principle in the Roman Law (D.17.18.3), has

been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation", not only in the United States and England but in practically all modern governments. The difficulty lies in the fixing of the limit and extent of the authority. While courts have undertaken to lay down general principles, the safest is to decide each case according to its peculiar environment, having in mind the wholesome legislative purpose intended to be achieved. Counsel for appellant Jacob Rosenthal also argues that the Insular Treasurer possesses "the discretionary power to determine when a security is a speculative security and when it is not" because "he is given the power to compel any corporation, association or partnership already functioning, to surrender to him for examination its books and accounts enumerated in section 2, 'whenever he has reasonable ground to believe that the securities being sold or offered for sale are of a speculative character.'" It should be observed, however, that section 1 of Act No. 2581 defines and enumerates what are "speculative securities" and all the other provisions of the Act must be read and construed in conjunction and harmony with said section. Laws of the different states of the American Union similar in nature to Act No. 2581 were assailed on constitutional grounds somewhat analogous to those involved in the case at bar, but the decisions of both the state courts and the Supreme Court of the United States have upheld their constitutionality. In the case of Hall vs. Geiger-Jones Co. (242 U.S., 539), the contention was made that the Blue Sky Law of Ohio, which requires the commissioner before granting a license to "be satisfied of the good repute in business of such applicant and named agents", and which empowers said commissioner to revoke the license or refuse to renew it upon ascertaining that the licensee "is of bad business repute; has violated any provisions of this act or has engaged, or is about to engage, under favor of such license, in illegitimate business or in fraudulent transactions", is unconstitutional because the law has failed to give a standard to guide or determine the decision of the commissioner leaves "room for the play and action of purely personal and arbitrary power", but the Supreme Court of the United States overruled the contention and held: Besides it is certainly apparent that if the conditions are within the power of the State to impose, they can only be ascertained by an executive officer. Reputation and character are quite tangible attributes, but there can be no legislative definition of them that can automatically attach to or identify individuals possessing them, and necessarily the aid of some executive agency must be invoked. The contention of appellees would take from government one of its most essential instrumentalities, of which the various national and state commissions are instances. But the contention may be answered by authority. In Gundling vs. Chicago (177 U.S., 183), an ordinance of the City of Chicago was passed on which required a license of dealers in cigarettes and as a condition of the license that the applicant, if a single individual, all of the members of the firm, if a co-partnership, and any person or persons in charge of the business, if a corporation, should be of good character and reputation, and the duty was delegated to the mayor of the city to determine the existence of the conditions. The ordinance was sustained. To this case may be added Red "C" Oil Manufacturing Co. vs. North Carolina (222 U.S., 380, 394, and cases cited); Mutual Film Corporation vs. Industrial Commission of Ohio (236 U.S., 230); Brazee vs. Michigan (241 U.S., 340, 341). See also Reetz vs. Michigan, (188 U.S., 505); Lieberman vs. Van de Carr (199 U. S., 552). (Pp. 553, 554.)

In the case of Leach vs. Daugherty (238 P., 160), where the contention was advanced that section 6 of the Corporate Securities Act of California which authorized the corporation commissioner to refuse to grant a broker's certificate, if he is not satisfied of the "good business reputation of the applicant", is unconstitutional because "no rules, regulations, or specifications are set forth in the said Corporate Securities Act defining what shall constitute 'good business reputation,'" it was ruled that "Considering such objection, it would appear that the leading case of Hall vs. GeigerJones Co. (242 U.S., 539; 37 Sup. Ct., 217; 61 Law. ed., 480; L.R.A., 1917F, 514; Ann. Cas. 1917C, 643), is so conclusively against the petitioner's contention that little room is left for argument", and that "it is well-settled principle of law in this state that by legislative act a commission or board may be empowered to ascertain the existence of facts, upon the finding of which may depend the right to continue in the practice of a profession or a regulated business." In the case of G.F. Redmond & Co. vs. Michigan Securities Commission (222 Mich., 1; 192 N.W., 688), in which it was argued that the provision in section 11955 of the Compiled Laws of 1915 (Michigan Blue Sky Law), authorizing the commission to revoke a license for "good cause" upon notice to the dealer and a hearing duly had, is unconstitutional because the term "good cause" is so vague and indefinite that the law practically vested upon the commission arbitrary powers, the court said: The term "good cause" for revocation, as employed in the statute, relates so clearly to the conduct of the licensed business, within the limits fixed by law, as to negative any arbitrary official action, and is so comprehensive of unlawful, irregular, fraudulent, unauthorized, and forbidden business management and transactions conducted as to demand no more particular specification of its meaning and its application. Must the law map out , for the guidance of the licensee, a code of ethics and post danger signals against inhibited and dishonest practices? The defendant had no right to have the conduct of its business charted by specifications of forbidden practices involving revocation of the license. The general scope and expressed purpose of the law, together with open and fair dealing, entered the license, and transgression thereof constituted good cause for revocation thereof. (P. 689.) In the case of State ex rel. Central Steam Heat & Power Co. vs. Gettle (Wis. [1928], 220 N.W., 201), where it was argued that the requirement of the Wisconsin Blue Sky Law (St. 1925, sec. 184.09 [3]; Law 1927, c. 444) that the Railroad Commission shall find that the "financial condition, plan of operation, and the proposed undertakings of the corporation are such as to afford reasonable protection to the purchasers of the securities to be issued", is unconstitutional for the reason that (1) the Legislature has no power to regulate the issuance of securities in order to protect the investing public; (2) the Legislature does not provide a standard to control the commission; (3) the statute is so indefinite and uncertain in its meaning as to be incapable of administration; and (4) the statute delegates to the railroad commission legislative power, the court said: This is but a usual provision found in the many so-called Blue Sy Laws, the constitutionality of which has been upheld by the courts generally. The constitutionality of similar provisions has been so thoroughly considered by this court that further discussion thereof is unnecessary. The following cases abundantly establish the constitutionality of

this provision. (State ex rel. Minneapolis, St. Paul & Sault Ste. Marie Railway Company vs. Railroad Commission of Wisconsin, 137 Wis., 80; 117 N.W., 846; Appleton Water Works Co. vs. Railroad Commission of Wisconsin, 154 Wis., 121; 142 N.E., 476; 47 L.R.A. [N.S.], 770; Ann. Cas. 1915B, 1160; State ex rel. City of Milwaukee vs. Milwaukee Electric Railway & Light Co., 169 Wis., 183; 172 N.W., 230; City of Milwaukee vs. Railroad Commission of Wisconsin, 183 Wis., 498; 196 N.W., 853; Wisconsin Southern Ry. Co. vs. Railroad Commission of Wisconsin, 185 Wis., 313; 201 N.W., 244; Kretuzer vs. Westfahl, 187 Wis., 463; 204 N.W., 595.) Another ground relied upon by appellants in contending that Act No. 2581 is unconstitutional is that it denies equal protection of the laws because the law discriminates between an owner who sells his securities in a single transaction and one who disposes of them in repeated and successive transactions. In disposing of this contention we need only refer to the case of Hall vs. Geiger-Jones Co., supra, wherein the Supreme Court of the United States held: "Discriminations are asserted against the statute which extend, it is contended, to denying appellees the equal protection of the laws. Counsel enumerates them as follows: "Prominent among such discriminations are . . . between an owner who sells his securities in a single transaction and one who disposes of them in successive transactions; . . . " We cannot give separate attention to the asserted discriminations. It is enough to say that they are within the power of classification which a state has. A state "ay direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed . . .. If a class is deemed to present a conspicuous example of what the legislature seeks to prevent, the 14th Amendment allows it to be dealt with although otherwise and merely logically not distinguishable from others not embraced in the law. Counsel for appellant Nicasio Osmea further alleges that Act No. 2581 is unconstitutional on the ground that it is vague and uncertain. A similar contention has already been overruled by this court in the case of People vs. Fernandez and Trinidad, supra. An Act will be declared void and inoperative on the ground of vagueness and uncertainty only upon a showing that the defect is such that the courts are unable to determine, with any reasonable degree of certainty, what the legislature intended. The circumstance that this court has no more than one occasion given effect and application to Act. No. 2581 (Valhalla Hotel Construction Co. vs. Carmona, 44 Phil., 233; People vs. Nimrod McKinney, 47 Phil., 792; People vs. Fernandez and Trinidad, supra) decisively argues against the position taken by appellant Osmea. In this connection we cannot pretermit reference to the rule that "legislation should not be held invalid on the ground of uncertainty if susceptible of any reasonable construction that will support and give it effect. An Act will not be declared inoperative and ineffectual on the ground that it furnishes no adequate means to secure the purpose for which it is passed, if men of common sense and reason can devise and provide the means, and all the instrumentalities necessary for its execution are within the reach of those intrusted therewith." (25 R.C.L., pp. 810, 811.)

Reaffirming our view in People vs. Fernandez and Trinidad, supra, we hold that Act No. 2581 is valid and constitutional. Taking up now the question raised with reference to the speculative nature of the shares of the ). O.R.O. Oil Co. and the South Cebu Oil Co., we find that section 1, paragraph (b) of Act No. 2581, in defining speculative securities, provides: . . . The term "speculative securities" as used in this Act shall be deemed to mean and include: xxx xxx xxx

(b) All securities the value of which materially depend upon proposed or promised future promotion or development rather than on present tangible assets and conditions. At the beginning, and at the time of the issuance of the shares of the O.R.O. Oil Co. and the South Cebu Oil Co., all that these companies had were their exploration leases. Beyond this, there was nothing tangible. The value of those shares depended upon future development and the uncertainty of "striking" oil. The shares issued under these circumstances are clearly speculative because they depended upon proposed or promised future promotion or development rather than on present tangible assets and conditions. Appellants next contend that in view of the repeal of Act No. 2581 by Commonwealth Act. No. 83, they have been relieved of criminal responsibility. Assuming that the former Act has been entirely and completely abrogated by the latter Act a point we do not have to decide this fact does not relieve appellants from criminal responsibility. "It has been the holding, and it must again be the holding, that where an Act of the Legislature which penalizes an offense repeals a former Act which penalized the same offense, such repeal does not have the effect of thereafter depriving the courts of jurisdiction to try, convict and sentence offenders charged with violations of the old law." (People vs. Concepcion, 44 Phil., 126, 132; Ong Chang Wing and Kwong Fok vs. U.S., 218 U.S., 272; 40 Phil., 1046; U.S. vs. Cuna, 12 Phil., 241; U.S. vs. Aron, 12 Phil., 778; U.S. vs. Tonga, 15 Phil., 43; U.S. vs. Molina, 17 Phil., 582.) Appellants further contend that they come under the exception provided in section 8 of Act No. 2581. This section provides: This Act shall not apply to the holder of any speculative security who is not the issuer thereof, nor to the person who has acquired the same for his own account in the usual and ordinary course of business and not for the direct or indirect promotion of any enterprise or scheme within the purview of this Act, unless such possession is in good faith. Repeated and successive sales of any speculative securities shall be prima facie evidence that the claim of ownership is not bona fide, but is a mere shift, device or plot to evade the provisions of this Act. Such speculators shall incur the penalty provided for in section seven of this Act.

Under this section, there are clearly two classes of persons to whom the law is not applicable: (1) Persons who hold speculative securities but who are not the issuers thereof; and (2) persons who have acquired the same for their own account in the usual and ordinary course of business and not for the direct or indirect promotion of any enterprise or scheme within the purview of this Act, provided (the law uses the term "unless") such possession is in good faith. Passing upon the questions of fact necessarily involved in the application of section 8 of Act No. 2581, the trial court in case No. 52365 makes the following findings with reference to Nicasio Osmea: . . . El acusado Osmea no ha adquirido por su propia cuenta en el curso ordinario y corriente de los negocios en la O.R.O. Oil Co. Las acciones por el vendidas, pues las adquirio mediante suscripcion como uno de los fundadores de dicha corporacion, pero si para la promocion indirecta de un proyecto de negocio o empresa para el cual se habia organizado le corporacion, habiendo pagado totalmente el importe de dichas acciones a la misma corporacion; ni tampoco las poseia de buena fe, puesto que como fundador y miembro de la junta directiva de dicha corporacion debia saber que no se habia expedido por el Tesorero Insular ningun permiso por escrito a al corporacion para la venta de dichas acciones. Y las ventas sucesivas y repetidas de esas acciones que tenia en la misma corporacion, aunque tales acciones eran suyas por haberlas el obtenido de la corporacion mediante suscripcion y pago del importe correspondiente prueban que esta pretension de propiedad ha sido solamente un medio de que se ha valido para vender tales acciones a precios mucho mayores que el importe por por haberse expedido tal permiso. The same findings, mutatis mutandis, are made in case No. 52366 against the same appellant, and against Jacob Rosenthal in the two cases. Even if we could, we do not feel justified in disturbing the findings of the trial court. The good faith set up by appellant Rosenthal for having acted on the advice of one Garcia, an officer in the Insular Treasury, and the subsequent devolution by him of amounts collected from some of the purchasers of the shares may be considered as a circumstance in his favor in the imposition of the penalty prescribed by law but does not exempt him from criminal responsibility. (People vs. McCalla, 63 Cal. App., 783; 220 Pac., 436; 367 U.S., 585; 69 Law. ed., 799; 45 Sup. Ct., 461; People vs. Fernandez and Trinidad, supra.) The judgments of the lower court are affirmed, with the modification that the fines are reduced as to accused Jacob Rosenthal from P500 to P200 in each case, and as to accused Nicasio Osmea, from P1,000 to P500 in case No. 52365 and from P2,000 to P1,000 in case No. 52366, with subsidiary imprisonment for both in case of insolvency, and costs. So ordered. Avancea, C.J., Villa-Real, Imperial, Diaz, Concepcion, and Moran, JJ., concur. G.R. No. L-49112 February 2, 1979 LEOVILLO C. AGUSTIN, petitioner, vs. HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L.

JUINIO, in his capacity as Minister Of Public Works, Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of Public Highways, respondents. Leovillo C. Agustin Law Office for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D. Aquino for respondents.

FERNANDO, J.: The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is assailed in this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar as the rules and regulations for its implementation are concerned, for transgressing the fundamental principle of non- delegation of legislative power. The Letter of Instruction is stigmatized by petitioner who is possessed of the requisite standing, as being arbitrary and oppressive. A temporary restraining order as issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino, Minister of Public Highways; were to answer. That they did in a pleading submitted by Solicitor General Estelito P. Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear that the imputation of a constitutional infirmity is devoid of justification The Letter of Instruction on is a valid police power measure. Nor could the implementing rules and regulations issued by respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the petition must be dismissed. The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles along streets or highways without any appropriate early warning device to signal approaching motorists of their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of safety on all streets and highways, including expressways or limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at all times in their motor vehicles at least one (1) pair of early warning device consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more on any street or highway, including expressways or limited access roads, the owner, user or driver thereof shall cause the warning device mentioned herein to be installed at least four meters away to the front and rear of the motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall

cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not more than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are appropriate to effectively implement this order. 4. All hereby concerned shall closely coordinate and take such measures as are necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November 15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is hereby amended to read as follows: 3. The Land transportation Commissioner shall require every motor vehicle owner to procure from any and present at the registration of his vehicle, one pair of a reflectorized early warning device, as d bed of any brand or make chosen by mid motor vehicle . The Land Transportation Commissioner shall also promulgate such rule and regulations as are appropriate to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the implementing rules and regulations on December 10, 1976. 5 They were not enforced as President Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the installation of early warning device as a pre-registration requirement for motor vehicle was concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and directed the immediate implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No. 229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on motor vehicle, the following rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be implemented provided that the device may come from whatever source and that it shall have substantially complied with the EWD specifications contained in Section 2 of said administrative order; 2. In order to insure that every motor vehicle , except motorcycles, is equipped with the device, a pair of serially numbered stickers, to be issued free of charge by this Commission, shall be attached to each EWD. The EWD. serial number shall be indicated on the registration certificate and official receipt of payment of current registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation, and Communications. 10 Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already properly equipped when it came out from the assembly lines with blinking lights fore and aft, which could very well serve as an early warning device in case of the emergencies mentioned in Letter of Instructions No. 229, as amended, as well as the implementing rules and regulations in Administrative Order No. 1 issued by the land transportation Commission," 11 alleged that said Letter of Instruction No. 229, as amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For him they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society." 12 He contended that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will make manufacturers and dealers instant millionaires at the expense of car owners who are compelled to buy a set of the so-called early warning device at the rate of P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a compassionate New Society [as being] compulsory and confiscatory on the part of the motorists who could very well

provide a practical alternative road safety device, or a better substitute to the specified set of EWD's." 15 He therefore prayed for a judgment both the assailed Letters of Instructions and Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile. A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory injunction, the Court Resolved to (require) the respondents to file an answer thereto within ton (10) days from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order] effective as of this date and continuing until otherwise ordered by this Court. 16 Two motions for extension were filed by the Office of the Solicitor General and granted. Then on November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations and stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission Administrative Order No. 1 and its Memorandum Circular No. 32 violates the constitutional provisions on due process of law, equal protection of law and undue delegation of police power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal the truth being that said allegations are without legal and factual basis and for the reasons alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who contented himself with a rhetorical recital of his litany of grievances and merely invoked the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the assailed Letter of Instruction was a valid exercise of the police power and implementing rules and regulations of respondent Edu not susceptible to the charge that there was unlawful delegation of legislative power, there was in the portion captioned Special and Affirmative Defenses, a citation of what respondents believed to be the authoritative decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and which was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied. This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at the outset, it is far from meritorious and must be dismissed. 1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by petitioner and is the main reliance of respondents. It is the submission of the former, however, that while embraced in such a category, it has offended against the due process and equal protection safeguards of the Constitution, although the latter point was mentioned only in passing.

The broad and expansive scope of the police power which was originally Identified by Chief Justice Taney of the American Supreme Court in an 1847 decision as "nothing more or less than the powers of government inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into force, Calalang v. Williams, Identified police power with state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. Persons and property could thus 'be subjected to all kinds of restraints and burdens in order to we the general comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a competence being referred to as 'the power to prescribe regulations to promote the health, morals, peace, education, good order or safety, and general welfare of the people. The concept was set forth in negative terms by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is in the above sense the greatest and most powerful at. tribute of government. It is, to quote Justice Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with the well-being of the nation. What is critical or urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal peace, safety, good order, and welfare." 24 2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular police power measure challenged was clearly intended to promote public safety. It would be a rare occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has been called to our attention, an indication of its being non-existent. The latest decision in point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To promote safe transit upon, and. avoid obstruction on roads and streets designated as national roads * * *. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative demands of public safety. 3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and regulations becomes even more apparent considering his failure to lay the necessary factual foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying

questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record in overthrowing the statute. 29 4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity. As was pointed out in his Answer "The President certainly had in his possession the necessary statistical information and data at the time he issued said letter of instructions, and such factual foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are not too vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by this Honorable Court: Further: "It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here"' * * *. But even as g the verity of petitioner's statistics, is that not reason enough to require the installation of early warning devices to prevent another 390 rear-end collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result from head-on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of such Letter of Instruction is encased in the armor of prior, careful study by the Executive Department. To set it aside for alleged repugnancy to the due process clause is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a pleader's well known penchant for exaggeration. 5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with 1) blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a distance of at least 400 meters, any motorist from this country or from any part of the world, who sees a reflectorized rectangular early seaming device installed on the roads, highways or expressways, will conclude, without thinking, that somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other built in warning devices or the petroleum lamps will not immediately get adequate advance warning because he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase, rather than decrease, the danger of collision. 31 6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early warning device prescribed thereby. All that is required is for motor vehicle owners concerned like petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or obtaining the same from whatever source. In fact, with a little of

industry and practical ingenuity, motor vehicle owners can even personally make or produce this early warning device so long as the same substantially conforms with the specifications laid down in said letter of instruction and administrative order. Accordingly the early warning device requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires at the expense of car owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early warning device requirement 'a more subtle racket may be committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral where, as in the instant case, the challenged Letter of Instruction No. 229 and implementing order disclose none of the constitutional defects alleged against it. 32 7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern.' There can be no possible objection then to the observation of Justice Montemayor. 'As long as laws do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or salutary. For they, according to Justice Labrador, 'are not supposed to override legitimate policy and * * * never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33 8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with authoritative pronouncements from this Tribunal, he would not have the temerity to make such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel A standard thus defines legislative policy, marks its maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate

supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law clearly, the legislative objective is public safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the recognition given expression by Justice Laurel in a decision announced not too long after the Constitution came into force and effect that the principle of non-delegation "has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation" not only in the United States and England but in practically all modern governments.' He continued: 'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature and toward the approval of the practice by the courts.' Consistency with the conceptual approach requires the reminder that what is delegated is authority non-legislative in character, the completeness of the statute when it leaves the hands of Congress being assumed." 34 9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally accepted principles of international law as part of the law of the land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality. 10. That is about all that needs be said. The rather court reference to equal protection did not even elicit any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such a casual observation should be taken seriously. In no case is there a more appropriate occasion for insistence on what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be considered unless the point is specially pleaded, insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The law is anything but that. WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately executory. No costs. Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, concur. Makasiar, J, reserves the right to file a separate opinion.

Aquino J., took no part. Concepcion J., is on leave. Castro, C.J., certifies that Justice Concepcion concurs in their decision.

Separate Opinions

TEEHANKEE, J., dissenting: I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device, without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar. Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia: 1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be demonstrated. 2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country; 3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged;

4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and 5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order. I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

# Separate Opinions TEEHANKEE, J., dissenting: I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device, without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar. Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia: 1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized

tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be demonstrated. 2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country; 3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged; 4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and 5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order. I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry. G.R. No. L-14078 March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs, vs. THE PROVINCIAL BOARD OF MINDORO, defendant. D. R. Williams & Filemon Sotto for plaintiff. Office of the Solicitor-General Paredes for defendant. MALCOLM, J.:

In one of the cases which denote a landmark in American Constitutional History (Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American jurisprudence, began his opinion (relating to the status of an Indian) with words which, with a slight change in phraseology, can be made to introduce the present opinion This cause, in every point of view in which it can be placed, is of the deepest interest. The legislative power of state, the controlling power of the constitution and laws, the rights if they have any, the political existence of a people, the personal liberty of a citizen, are all involved in the subject now to be considered. To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to introduce the facts and the issues, next to give a history of the so called "non-Christians," next to compare the status of the "non-Christians" with that of the American Indians, and, lastly, to resolve the constitutional questions presented. I. INTRODUCTION. This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial officials of that province. Rubi and his companions are said to be held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the provincial sheriff in the prison at Calapan for having run away form the reservation. The return of the Solicitor-General alleges: 1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which is as follows: The provincial governor, Hon. Juan Morente, Jr., presented the following resolution: "Whereas several attempts and schemes have been made for the advancement of the non-Christian people of Mindoro, which were all a failure, "Whereas it has been found out and proved that unless some other measure is taken for the Mangyan work of this province, no successful result will be obtained toward educating these people. "Whereas it is deemed necessary to obliged them to live in one place in order to make a permanent settlement, "Whereas the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board.

"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it "Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior, and "Resolved further, That Mangyans may only solicit homesteads on this reservation providing that said homestead applications are previously recommended by the provincial governor." 2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved by the Secretary of the Interior of February 21, 1917. 3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No. 2 which says: "Whereas the provincial board, by Resolution No. 25, current series, has selected a site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in Mindoro. "Whereas said resolution has been duly approve by the Honorable, the Secretary of the Interior, on February 21, 1917. "Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the provisions of section 2145 of the revised Administrative Code, do hereby direct that all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the Baco River including those in the districts of Dulangan and Rubi's place in Calapan, to take up their habitation on the site of Tigbao, Naujan Lake, not later than December 31, 1917. "Any Mangyan who shall refuse to comply with this order shall upon conviction be imprisoned not exceed in sixty days, in accordance with section 2759 of the revised Administrative Code." 4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the executive order of the governor of the same province copied in paragraph 3, were necessary measures for the protection of the Mangyanes of Mindoro as well as the protection of public forests in which they roam, and to introduce civilized customs among them. 5. That Rubi and those living in his rancheria have not fixed their dwelling within the reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act No. 2711.

6. That the undersigned has not information that Doroteo Dabalos is being detained by the sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos. 2145 and 2759 of Act No. 2711. It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected by the provincial governor and approved by the provincial board. The action was taken in accordance with section 2145 of the Administrative Code of 1917, and was duly approved by the Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this section of the Administrative Code. This, therefore, becomes the paramount question which the court is called upon the decide. Section 2145 of the Administrative Code of 1917 reads as follows: SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. With the prior approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him an approved by the provincial board. In connection with the above-quoted provisions, there should be noted section 2759 of the same Code, which read as follows: SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any nonChristian who shall refuse to comply with the directions lawfully given by a provincial governor, pursuant to section two thousand one hundred and forty-five of this Code, to take up habitation upon a site designated by said governor shall upon conviction be imprisonment for a period not exceeding sixty days. The substance of what is now found in said section 2145 is not new to Philippine law. The genealogical tree of this section, if we may be permitted to use such terminology, would read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of various special provincial laws, notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No. 387. Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the phrase in its proper category, and in order to understand the policy of the Government of the Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of all to set down a skeleton history of the attitude assumed by the authorities towards these "nonChristians," with particular regard for the legislation on the subject. II. HISTORY. A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

The most important of the laws of the Indies having reference to the subject at hand are compiled in Book VI, Title III, in the following language. LAW I. The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo, on May 20, 1578, THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES). In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical law, and in order that they may forget the blunders of their ancient rites and ceremonies to the end that they may live in harmony and in a civilized manner, it has always been endeavored, with great care and special attention, to use all the means most convenient to the attainment of these purposes. To carry out this work with success, our Council of the Indies and other religious persons met at various times; the prelates of new Spain assembled by order of Emperor Charles V of glorious memory in the year one thousand five hundred and forty-six all of which meetings were actuated with a desire to serve God an our Kingdom. At these meetings it was resolved that indios be made to live in communities, and not to live in places divided and separated from one another by sierras and mountains, wherein they are deprived of all spiritual and temporal benefits and wherein they cannot profit from the aid of our ministers and from that which gives rise to those human necessities which men are obliged to give one another. Having realized that convenience of this resolution, our kings, our predecessors, by different orders, have entrusted and ordered the viceroys, presidents, and governors to execute with great care and moderation the concentration of the indios into reducciones; and to deal with their doctrine with such forbearance and gentleness, without causing inconveniences, so that those who would not presently settle and who would see the good treatment and the protection of those already in settlements would, of their own accord, present themselves, and it is ordained that they be not required to pay taxes more than what is ordered. Because the above has been executed in the greater part of our Indies, we hereby order and decree that the same be complied with in all the remaining parts of the Indies, and the encomederos shall entreat compliance thereof in the manner and form prescribed by the laws of this title. xxx xxx xxx

LAW VIII. Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618. THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW.

The places wherein the pueblos and reducciones shall be formed should have the facilities of waters. lands, and mountains, ingress and egress, husbandry and passageway of one league long, wherein the indios can have their live stock that they may not be mixed with those of the Spaniards. LAW IX. Philip II at Toledo, on February 19, 1956. THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY HELD BY THEM. With more good-will and promptness, the indios shall be concentrated in reducciones. Provided they shall not be deprived of the lands and granaries which they may have in the places left by them. We hereby order that no change shall be made in this respect, and that they be allowed to retain the lands held by them previously so that they may cultivate them and profit therefrom. xxx xxx xxx

LAW XIII. THE SAME AS ABOVE. THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR COURT. No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to remove the pueblos or the reducciones once constituted and founded, without our express order or that of the viceroy, president, or the royal district court, provided, however, that the encomenderos, priests, or indios request such a change or consent to it by offering or giving information to that en. And, because these claims are often made for private interests and not for those of the indios, we hereby order that this law be always complied with, otherwise the change will be considered fraudulently obtained. The penalty of one thousand pesos shall be imposed upon the judge or encomendero who should violate this law. LAW XV. Philip III at Madrid, on October 10, 1618. THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE "INDIOS." We order that in each town and reduccion there be a mayor, who should be an indio of the same reduccion; if there be more than eighty houses, there should be two mayors and two

aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be more than two mayors and four aldermen, If there be less than eighty indios but not less than forty, there should be not more than one mayor and one alderman, who should annually elect nine others, in the presence of the priests , as is the practice in town inhabited by Spaniards and indios. LAW XXI. Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at Madrid, on October 1 and December 17, 1646. For this law and the one following, see Law I, Tit. 4, Book 7. THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES, "MESTIZOS," AND MULATTOES. We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in the reducciones and towns and towns of the indios, because it has been found that some Spaniards who deal, trade, live, and associate with the indios are men of troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid the wrongs done them, the indios would leave their towns and provinces; and the negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services, contaminate them with their bad customs, idleness, and also some of their blunders and vices which may corrupt and pervert the goal which we desire to reach with regard to their salvation, increase, and tranquillity. We hereby order the imposition of grave penalties upon the commission of the acts above-mentioned which should not be tolerated in the towns, and that the viceroys, presidents, governors, and courts take great care in executing the law within their powers and avail themselves of the cooperation of the ministers who are truly honest. As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are children of indias and born among them, and who are to inherit their houses and haciendas, they all not be affected by this law, it appearing to be a harsh thing to separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.) A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of the less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in the Decree of the Governor-General of the Philippine Islands of January 14, 1881, reading as follows: It is a legal principle as well as a national right that every inhabitant of a territory recognized as an integral part of a nation should respect and obey the laws in force therein; while, on other hand, it is the duty to conscience and to humanity for all governments to civilize those backward races that might exist in the nation, and which living in the obscurity of ignorance, lack of all the nations which enable them to grasp the moral and material advantages that may be acquired in those towns under the protection and vigilance afforded them by the same laws.

It is equally highly depressive to our national honor to tolerate any longer the separation and isolation of the non-Christian races from the social life of the civilized and Christian towns; to allow any longer the commission of depredations, precisely in the Island of Luzon wherein is located the seat of the representative of the Government of the, metropolis. It is but just to admit the fact that all the governments have occupied themselves with this most important question, and that much has been heretofore accomplished with the help and self-denial of the missionary fathers who have even sacrificed their lives to the end that those degenerate races might be brought to the principles of Christianity, but the means and the preaching employed to allure them have been insufficient to complete the work undertaken. Neither have the punishments imposed been sufficient in certain cases and in those which have not been guarded against, thus giving and customs of isolation. As it is impossible to consent to the continuation of such a lamentable state of things, taking into account the prestige which the country demands and the inevitable duty which every government has in enforcing respect and obedience to the national laws on the part of all who reside within the territory under its control, I have proceeded in the premises by giving the most careful study of this serious question which involves important interests for civilization, from the moral and material as well as the political standpoints. After hearing the illustrious opinions of all the local authorities, ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after finding the unanimous conformity of the meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of Authorities, held for the object so indicated, I have arrived at an intimate conviction of the inevitable necessity of proceeding in a practical manner for the submission of the said pagan and isolated races, as well as of the manner and the only form of accomplishing such a task. For the reasons above stated and for the purpose of carrying out these objects, I hereby promulgate the following: DECREE. 1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be governed by the common law, save those exceptions prescribed in this decree which are bases upon the differences of instructions, of the customs, and of the necessities of the different pagan races which occupy a part of its territory. 2. The diverse rules which should be promulgated for each of these races which may be divided into three classes; one, which comprises those which live isolated and roaming about without forming a town nor a home; another, made up of those subdued pagans who have not as yet entered completely the social life; and the third, of those mountain and rebellious pagans shall be published in their respective dialects, and the officials, priests, and missionaries of the provinces wherein they are found are hereby entrusted in the work of having these races learn these rules. These rules shall have executive character,

beginning with the first day of next April, and, as to their compliance, they must be observed in the manner prescribed below. 3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all the means which their zeal may suggest to them, to the taking of the census of the inhabitants of the towns or settlement already subdued, and shall adopt the necessary regulations for the appointment of local authorities, if there be none as yet; for the construction of courts and schools, and for the opening or fixing up of means of communication, endeavoring, as regards the administrative organization of the said towns or settlements, that this be finished before the first day of next July, so that at the beginning of the fiscal year they shall have the same rights and obligations which affect the remaining towns of the archipelago, with the only exception that in the first two years they shall not be obliged to render personal services other than those previously indicated. 4. So long as these subdued towns or settlements are located infertile lands appropriate for cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses; and only in case of absolute necessity shall a new residence be fixed for them, choosing for this purpose the place most convenient for them and which prejudices the least their interest; and, in either of these cases, an effort must be made to establish their homes with the reach of the sound of the bell. 5. For the protection and defense of these new towns, there shall be established an armed force composed precisely of native Christian, the organization and service of which shall be determined in a regulations based upon that of the abolished Tercios de Policia (division of the Guardia Civil). 6. The authorities shall see to it that the inhabitants of the new towns understand all the rights and duties affecting them and the liberty which they have as to where and now they shall till their lands and sell the products thereof, with the only exception of the tobacco which shall be bought by the Hacienda at the same price and conditions allowed other producers, and with the prohibition against these new towns as well as the others from engaging in commerce of any other transaction with the rebellious indios, the violation of which shall be punished with deportation. 7. In order to properly carry out this express prohibition, the limits of the territory of the rebellious indios shall be fixed; and whoever should go beyond the said limits shall be detained and assigned governmentally wherever convenient. 8. For the purpose of assisting in the conversion of the pagans into the fraternity of the Catholic Church, all by this fact along be exempt for eight years from rendering personal labor. 9. The authorities shall offer in the name of the State to the races not subdued (aetas and mountains igorrots the following advantages in returns for their voluntary submission: to live in towns; unity among their families; concession of good lands and the right to cultivate them in the manner they wish and in the way them deem most productive; support

during a year, and clothes upon effecting submission; respect for their habits and customs in so far as the same are not opposed to natural law; freedom to decide of their own accord as to whether they want to be Christians or not; the establishment of missions and families of recognized honesty who shall teach, direct, protect, and give them security and trust them; the purchase or facility of the sale of their harvests; the exemption from contributions and tributes for ten years and from the quintas (a kind of tax) for twenty years; and lastly, that those who are governed by the local authorities as the ones who elect such officials under the direct charge of the authorities of the province or district. 10. The races indicated in the preceding article, who voluntarily admit the advantages offered, shall, in return, have the obligation of constituting their new towns, of constructing their town hall, schools, and country roads which place them in communication with one another and with the Christians; provided, the location of these towns be distant from their actual residences, when the latter do not have the good conditions of location and cultivations, and provided further the putting of families in a place so selected by them be authorized in the towns already constituted. 11. The armed force shall proceed to the prosecution and punishment of the tribes, that, disregarding the peace, protection, and advantages offered them, continue in their rebellious attitude on the first of next April, committing from now on the crimes and vexations against the Christian towns; and for the this purposes, the Captain General's Office shall proceed with the organization of the divisions of the Army which, in conjunction with the rural guards (cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term, they shall destroy their dwelling-houses, labors, and implements, and confiscate their products and cattle. Such a punishment shall necessarily be repeated twice a year, and for this purpose the military headquarters shall immediately order a detachment of the military staff to study the zones where such operations shall take place and everything conducive to the successful accomplishment of the same. 12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates to my authorities, local authorities, and other subordinates to may authority, civil as well as military authorities, shall give the most effective aid and cooperation to the said forces in all that is within the attributes and the scope of the authority of each. 13. With respect to the reduccion of the pagan races found in some of the provinces in the southern part of the Archipelago, which I intend to visit, the preceding provisions shall conveniently be applied to them. 14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a council or permanent commission which shall attend to and decide all the questions relative to the application of the foregoing regulations that may be brought to it for consultations by the chiefs of provinces and priests and missionaries. 15. The secondary provisions which may be necessary, as a complement to the foregoing, in brining about due compliance with this decree, shall be promulgated by the respective

official centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.) B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES. Ever since the acquisition of the Philippine Islands by the United States, the question as to the best method for dealing with the primitive inhabitants has been a perplexing one. 1. Organic law. The first order of an organic character after the inauguration of the American Government in the Philippines was President McKinley's Instructions to the Commission of April 7, 1900, later expressly approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions have remained undisturbed by subsequent congressional legislation. One paragraph of particular interest should here be quoted, namely: In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government and under which many of these tribes are now living in peace and contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal governments should, however, be subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous practices and introduce civilized customs. Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to provide for a legislative body and, with this end in view, to name the prerequisites for the organization of the Philippine Assembly. The Philippine Legislature, composed of the Philippine Commission and the Philippine Assembly, was to have jurisdiction over the Christian portion of the Islands. The Philippine Commission was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes. The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of August 29, 1916, commonly known as the Jones Law. This transferred the exclusive legislative jurisdiction and authority theretofore exercised by the Philippine Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts, the twelfth district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The Governor-General of the Philippine Islands was authorized to appoint senators and representatives for the territory which, at the time of the passage of the Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a bureau to be known as the "Bureau of non-Christian Tribes" which shall have general supervision over the public affairs of the inhabitants which are represented in the Legislature by appointed senators and representatives( sec. 22).

Philippine organic law may, therefore, be said to recognized a dividing line between the territory not inhabited by Moros or other non-Christian tribes, and the territory which Moros or other nonChristian tribes, and the territory which is inhabited by Moros or other non-Christian tribes. 2. Statute law. Local governments in the Philippines have been provided for by various acts of the Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization and government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the Township Government Act; Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the Department of Mindanao and Sulu. The major portion of these laws have been carried forward into the Administrative Codes of 1916 an d1917. Of more particular interest are certain special laws concerning the government of the primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because referring to the Manguianes, we insert Act No. 547: No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO. By authority of the United States, be it enacted by the Philippine Commission, that: SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government, the provincial governor is authorized, subject to the approval of the Secretary of the Interior, in dealing with these Manguianes to appoint officers from among them, to fix their designations and badges of office, and to prescribe their powers and duties: Provided, That the powers and duties thus prescribed shall not be in excess of those conferred upon township officers by Act Numbered Three hundred and eighty-seven entitled "An Act providing for the establishment of local civil Governments in the townships and settlements of Nueva Vizcaya." SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is further authorized, when he deems such a course necessary in the interest of law and order, to direct such Manguianes to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. Manguianes who refuse to

comply with such directions shall upon conviction be imprisonment for a period not exceeding sixty days. SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to acquire the knowledge and experience necessary for successful local popular government, and his supervision and control over them shall be exercised to this end, an to the end that law and order and individual freedom shall be maintained. SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes has advanced sufficiently to make such a course practicable, it may be organized under the provisions of sections one to sixty-seven, inclusive, of Act Numbered three hundred and eighty-seven, as a township, and the geographical limits of such township shall be fixed by the provincial board. SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same is hereby expedited in accordance with section two of 'An Act prescribing the order of procedure by the Commission in the enactment of laws,' passed September twenty-sixth, nineteen hundred. SEC. 6. This Act shall take effect on its passage. Enacted, December 4, 1902. All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and 1397. The last named Act incorporated and embodied the provisions in general language. In turn, Act No. 1397 was repealed by the Administrative Code of 1916. The two Administrative Codes retained the provisions in questions. These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and consistent practice with reference to the methods to be followed for their advancement. C. TERMINOLOGY. The terms made use of by these laws, organic and statutory, are found in varying forms. "Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission. The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to be found in Act No. 253 of the Philippines Commission, establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of the Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.

"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a Filipinized legislature. These terms can be found in sections 2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission. The Administrative Code specifically provides that the term "non-Christian" shall include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.) D. MEANING OF TERM "NON-CHRISTIAN." If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving to it a religious signification. Obviously, Christian would be those who profess the Christian religion, and non-Christians, would be those who do not profess the Christian religion. In partial corroboration of this view, there could also be cited section 2576 of the last Administrative Code and certain well-known authorities, as Zuiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.) Not content with the apparent definition of the word, we shall investigate further to ascertain what is its true meaning. In one sense, the word can have a geographical signification. This is plainly to be seen by the provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other nonChristian tribes. Again, the Jones Law confers similar recognition in the authorization of the twelfth senatorial district for the "territory not now represented in the Philippine Assembly." The Philippines Legislature has, time and again, adopted acts making certain other acts applicable to that "part" of the Philippine Islands inhabited by Moros or other non-Christian tribes. Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section of this article, preceding section 2145, makes the provisions of the article applicable only in specially organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine Legislature has never seen fit to give all the powers of local self-government. They do not, however, exactly coincide with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still a geographical description. It is well-known that within the specially organized provinces, there live persons some of who are Christians and some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)

If the religious conception is not satisfactory, so against the geographical conception is likewise inadquate. The reason it that the motive of the law relates not to a particular people, because of their religion, or to a particular province because of its location, but the whole intent of the law is predicated n the civilization or lack of civilization of the inhabitants. At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce the term. "The so-called non-Christian" is a favorite expression. The Secretary of the Interior who for so many years had these people under his jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the "backward Philippine peoples, commonly known as the 'non-Christian tribes."' (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third Congress, third session on H.R. 18459, An Act to declare the purpose of the People of the United States as to the future political status of the Philippine Islands and to provide a more autonomous government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906, circulated by the Executive Secretary.) The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by reference to legislative, judicial, and executive authority. The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct "systematic investigations with reference to non-Christian tribes . . . with special view to determining the most practicable means for bringing about their advancement in civilization and material property prosperity." As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal marriage in connection with article 423 of the Penal code concerning the husband who surprises his wife in the act of adultery. In discussing the point, the court makes use of the following language: . . . we are not advised of any provision of law which recognizes as legal a tribal marriage of so-called non-Christians or members of uncivilized tribes, celebrated within that province without compliance with the requisites prescribed by General Orders no. 68. . . . We hold also that the fact that the accused is shown to be a member of an uncivilized tribe, of a low order of intelligence, uncultured and uneducated, should be taken into consideration as a second marked extenuating circumstance. Of much more moment is the uniform construction of execution officials who have been called upon to interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted much of the legislation relating to the so-called Christians and who had these people under his authority, was the former Secretary of the Interior. Under date of June 30, 1906, this official addressed a letter to all governor of provinces, organized under the Special Provincial Government Act, a letter which later received recognition by the Governor-General and was circulated by the Executive Secretary, reading as follows:

Sir: Within the past few months, the question has arisen as to whether people who were originally non-Christian but have recently been baptized or who are children of persons who have been recently baptized are, for the purposes of Act 1396 and 1397, to be considered Christian or non-Christians. It has been extremely difficult, in framing legislation for the tribes in these islands which are not advanced far in civilization, to hit upon any suitable designation which will fit all cases. The number of individual tribes is so great that it is almost out of the question to enumerate all of them in an Act. It was finally decided to adopt the designation 'nonChristians' as the one most satisfactory, but the real purpose of the Commission was not so much to legislate for people having any particular religious belief as for those lacking sufficient advancement so that they could, to their own advantage, be brought under the Provincial Government Act and the Municipal Code. The mere act of baptism does not, of course, in itself change the degree of civilization to which the person baptized has attained at the time the act of baptism is performed. For practical purposes, therefore, you will give the member of so-called "wild tribes" of your province the benefit of the doubt even though they may recently have embraced Christianity. The determining factor in deciding whether they are to be allowed to remain under the jurisdiction of regularly organized municipalities or what form of government shall be afforded to them should be the degree of civilization to which they have attained and you are requested to govern yourself accordingly. I have discussed this matter with the Honorable, the Governor-General, who concurs in the opinion above expressed and who will have the necessary instructions given to the governors of the provinces organized under the Provincial Government Act. (Internal Revenue Manual, p. 214.) The present Secretary of the Interior, in a memorandum furnished a member of this court, has the following to say on the subject: As far as names are concerned the classification is indeed unfortunate, but while no other better classification has as yet been made the present classification should be allowed to stand . . . I believe the term carries the same meaning as the expressed in the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of civilization rather than of religious denomination, for the hold that it is indicative of religious denomination will make the law invalid as against that Constitutional guaranty of religious freedom. Another official who was concerned with the status of the non-Christians, was the Collector of Internal Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the Interior was requested on the point, who, by return indorsement, agreed with the interpretation of the Collector of Internal Revenue. This Construction of the Collector of Internal Revenue can be found in circular letter No. 188 of the

Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214): The internal revenue law exempts "members of non-Christian tribes" from the payment of cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to mean not that persons who profess some form of Christian worship are alone subject to the cedula tax, and that all other person are exempt; he has interpreted it to mean that all persons preserving tribal relations with the so-called non-Christian tribes are exempt from the cedula tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so long as they live in cities or towns, or in the country in a civilized condition. In other words, it is not so much a matter of a man's form of religious worship or profession that decides whether or not he is subject to the cedula tax; it is more dependent on whether he is living in a civilized manner or is associated with the mountain tribes, either as a member thereof or as a recruit. So far, this question has not come up as to whether a Christian, maintaining his religious belief, but throwing his lot and living with a non-Christian tribe, would or would not be subject to the cedula tax. On one occasion a prominent Hebrew of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he was not a Christian. This Office, however, continued to collect cedula taxes from all the Jews, East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city are paid by men belonging to the nationalities mentioned. Chinamen, Arabs and other s are quite widely scattered throughout the Islands, and a condition similar to that which exist in Manila also exists in most of the large provincial towns. Cedula taxes are therefore being collected by this Office in all parts of these Islands on the broad ground that civilized people are subject to such taxes, and non-civilized people preserving their tribal relations are not subject thereto. (Sgd.) JNO. S. HORD, Collector of Internal Revenue. On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327, approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part reads: In view of the many questions that have been raised by provincial treasurers regarding cedula taxes due from members of non-Christian tribes when they come in from the hills for the purposes of settling down and becoming members of the body politic of the Philippine Islands, the following clarification of the laws governing such questions and digest of rulings thereunder is hereby published for the information of all concerned: Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact that they do not profess Christianity, but because of their uncivilized mode of life and low state of development. All inhabitants of the Philippine Islands classed as members of nonChristian tribes may be divided into three classes in so far as the cedula tax law is concerned . . .

Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life, severs whatever tribal relations he may have had and attaches himself civilized community, belonging a member of the body politic, he thereby makes himself subject to precisely the same law that governs the other members of that community and from and after the date when he so attaches himself to the community the same cedula and other taxes are due from him as from other members thereof. If he comes in after the expiration of the delinquency period the same rule should apply to him as to persons arriving from foreign countries or reaching the age of eighteen subsequent to the expiration of such period, and a regular class A, D, F, or H cedula, as the case may be, should be furnished him without penalty and without requiring him to pay the tax for former years. In conclusion, it should be borne in mind that the prime factors in determining whether or not a man is subject to the regular cedula tax is not the circumstance that he does or does not profess Christianity, nor even his maintenance of or failure to maintain tribal relations with some of the well known wild tribes, but his mode of life, degree of advancement in civilization and connection or lack of connection with some civilized community. For this reason so called "Remontados" and "Montescos" will be classed by this office as members of non-Christian tribes in so far as the application of the Internal Revenue Law is concerned, since, even though they belong to no well recognized tribe, their mode of life, degree of advancement and so forth are practically the same as those of the Igorrots and members of other recognized non-Christina tribes. Very respectfully, (Sgd.) ELLIS CROMWELL, Collector of Internal Revenue, Approved: (Sgd.) GREGORIO ARANETA, Secretary of Finance and Justice. The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the regulations is practically a transcript of Circular Letter No. 327. The subject has come before the Attorney-General for consideration. The Chief of Constabulary request the opinion of the Attorney-General as to the status of a non-Christian who has been baptized by a minister of the Gospel. The precise questions were these: "Does he remain nonChristian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors, does he commit an infraction of the law and does the person selling same lay himself liable under the provision of Act No. 1639?" The opinion of Attorney-General Avancea, after quoting the same authorities hereinbefore set out, concludes: In conformity with the above quoted constructions, it is probable that is probable that the person in question remains a non-Christian, so that, in purchasing intoxicating liquors both

he and the person selling the same make themselves liable to prosecution under the provisions of Act No. 1639. At least, I advise you that these should be the constructions place upon the law until a court shall hold otherwise. Solicitor-General Paredes in his brief in this case says: With respect to the meaning which the phrase non-Christian inhabitants has in the provisions of the Administrative code which we are studying, we submit that said phrase does not have its natural meaning which would include all non-Christian inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but simply refers to those uncivilized members of the non-Christian tribes of the Philippines who, living without home or fixed residence, roam in the mountains, beyond the reach of law and order . . . The Philippine Commission in denominating in its laws that portion of the inhabitants of the Philippines which live in tribes as non-Christian tribes, as distinguished from the common Filipinos which carry on a social and civilized life, did not intended to establish a distinction based on the religious beliefs of the individual, but, without dwelling on the difficulties which later would be occasioned by the phrase, adopted the expression which the Spanish legislation employed to designate the uncivilized portion of the inhabitants of the Philippines. The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of uncivilized tribes of the Philippines, not only because this is the evident intention of the law, but because to give it its lateral meaning would make the law null and unconstitutional as making distinctions base the religion of the individual. The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a sub-division under the title nonChristian tribes is, "Physical and Political Characteristics of the non-Christian Tribes," which sufficiently shows that the terms refers to culture and not to religion. In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials, specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a way , to geographical area, and, more directly, to natives of the Philippine Islands of a law grade of civilization, usually living in tribal relationship apart from settled communities. E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The Philippine Census of 1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro. Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres de Rozas de Filipinas, says: In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It may be that the use of this word is applicable to a great number of Filipinos, but nevertheless it has been applied only to certain inhabitants of Mindoro. Even in primitive times without doubt this name was given to those of that island who bear it to-day, but its employed in three Filipino languages shows that the radical ngian had in all these languages a sense to-day forgotten. In Pampango this ending still exists and signifies "ancient," from which we can deduce that the name was applied to men considered to be the ancient inhabitants, and that these men were pushed back into the interior by the modern invaders, in whose language they were called the "ancients." The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic people. They number approximately 15,000. The manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.) III. COMPARATIVE THE AMERICAN INDIANS. Reference was made in the Presidents' instructions to the Commission to the policy adopted by the United States for the Indian Tribes. The methods followed by the Government of the Philippines Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the AmericanIndian policy. From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized relation between the Government of the United States and the Indians may be described as that of guardian and ward. It is for the Congress to determine when and how the guardianship shall be terminated. The Indians are always subject to the plenary authority of the United States. Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring Indians." After quoting the Act, the opinion goes on "This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists."

A leading case which discusses the status of the Indians is that of the United States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the United States Constitution which gives Congress "power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The court then proceeds to indicate a brief history of the position of the Indians in the United States (a more extended account of which can be found in Marshall's opinion in Worcester vs. Georgia, supra), as follows: The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States, has always been an anomalous one and of a complex character. Following the policy of the European Governments in the discovery of American towards the Indians who were found here, the colonies before the Revolution and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its lands, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians themselves these relation are equally difficult to define. They were, and always have been, regarded as having a semiindependent position when they preserved their tribal relations; not as States, not as nation not a possessed of the fall attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. The opinion then continues: It seems to us that this (effect of the law) is within the competency of Congress. These Indian tribes are the wards of the nation. The are communities dependent on the United States. dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from the no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arise the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen . . . The power of the General Government over these remnants of race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. it must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.

In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered was whether the status of the Pueblo Indians and their lands was such that Congress could prohibit the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to statehood. The court looked to the reports of the different superintendent charged with guarding their interests and founds that these Indians are dependent upon the fostering care and protection of the government "like reservation Indians in general." Continuing, the court said "that during the Spanish dominion, the Indians of the pueblos were treated as wards requiring special protection, where subjected to restraints and official supervisions in the alienation of their property." And finally, we not the following: "Not only does the Constitution expressly authorize Congress to regulate commerce with the Indians tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state." With reference to laws affecting the Indians, it has been held that it is not within the power of the courts to overrule the judgment of Congress. For very good reason, the subject has always been deemed political in nature, not subject to the jurisdiction of the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the United States sets apart any public land as an Indian reservation, it has full authority to pass such laws and authorize such measures as may be necessary to give to the Indians thereon full protection in their persons and property. (U.S. vs. Thomas [1894], 151 U.S., 577.) All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial decisions. The only case which is even remotely in point and which, if followed literally, might result in the issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued against Brigadier General George Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in substance that the relators are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. The substance of the return to the writ was that the relators are individual members of, and connected with, the Ponca tribe of Indians; that they had fled or escaped form a reservation situated some place within the limits of the Indian Territory had departed therefrom without permission from

the Government; and, at the request of the Secretary of the Interior, the General of the Army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian Territory. The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus. The second question, of much greater importance, related to the right of the Government to arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy the Government had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the court said: "Laws passed for the government of the Indian country, and for the purpose of regulating trade and intercourse with the Indian tribes, confer upon certain officers of the Government almost unlimited power over the persons who go upon the reservations without lawful authority . . . Whether such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not , need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the exercise of the power must be upheld." The decision concluded as follows: The reasoning advanced in support of my views, leads me to conclude: 1. that an Indian is a 'person' within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he may be confined or in custody under color of authority of the United States or where he is restrained of liberty in violation of the constitution or laws of the United States. 2. That General George Crook, the respondent, being commander of the military department of the Platte, has the custody of the relators, under color of authority of the United States, and in violation of the laws therefore. 3. That n rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do. 4. that the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so long as they obey the laws and do not trespass on forbidden ground. And, 5. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered. As far as the first point is concerned, the decision just quoted could be used as authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act, and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide.

As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from different parts of the country and placed on these reservation, without any previous consultation as to their own wishes, and that, when once so located, they have been made to remain on the reservation for their own good and for the general good of the country. If any lesson can be drawn form the Indian policy of the United States, it is that the determination of this policy is for the legislative and executive branches of the government and that when once so decided upon, the courts should not interfere to upset a carefully planned governmental system. Perhaps, just as may forceful reasons exists for the segregation as existed for the segregation of the different Indian tribes in the United States. IV. CONSTITUTIONAL QUESTIONS. A. DELEGATION OF LEGISLATIVE POWER. The first constitutional objection which confronts us is that the Legislature could not delegate this power to provincial authorities. In so attempting, it is contended, the Philippine Legislature has abdicated its authority and avoided its full responsibility. That the maxim of Constitutional Law forbidding the delegation of legislative power should be zealously protected, we agree. An understanding of the rule will, however, disclose that it has not bee violated in his instance. The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in a multitude of case, namely: "The true distinction therefore 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 later no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may make decisions of executive departments of subordinate official thereof, to whom t has committed the execution of certain acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give prominence to the "necessity" of the case. Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section 21454 of the Administrative Code? Has not the Legislature merely conferred upon the provincial governor, with the approval of the provincial board and the Department Head, discretionary authority as to the execution of the law? Is not this "necessary"? The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the relator out of the lands ceded to the United States by the Wichita and affiliated bands of Indians. Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out to

the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the long established practice of the Department, before saying that this language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The power of Congress is not doubted. The Indians have been treated as wards of the nation. Some such supervision was necessary, and has been exercised. In the absence of special provisions naturally it would be exercised by the Indian Department." (See also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions of the United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.) There is another aspect of the question, which once accepted, is decisive. An exception to the general rule. sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities. The Philippine Legislature has here conferred authority upon the Province of Mindoro, to be exercised by the provincial governor and the provincial board. Who but the provincial governor and the provincial board, as the official representatives of the province, are better qualified to judge "when such as course is deemed necessary in the interest of law and order?" As officials charged with the administration of the province and the protection of its inhabitants, who but they are better fitted to select sites which have the conditions most favorable for improving the people who have the misfortune of being in a backward state? Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the Philippine Legislature to provincial official and a department head. B. RELIGIOUS DISCRIMINATION The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown clients, says that "The statute is perfectly clear and unambiguous. In limpid English, and in words as plain and unequivocal as language can express, it provides for the segregation of 'non-Christians' and none other." The inevitable result, them, is that the law "constitutes an attempt by the Legislature to discriminate between individuals because of their religious beliefs, and is, consequently, unconstitutional." Counsel's premise once being conceded, his arguments is answerable the Legislature must be understood to mean what it has plainly expressed; judicial construction is then excluded; religious equality is demanded by the Organic Law; the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the long continued meaning given to a common expression, especially as classification of inhabitants according to religious belief leads the court to what it should avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to natives of the Philippines Islands of a low grade of civilization, and that section 2145 of the Administrative Code of 1917, does not discriminate between individuals an account of religious differences. C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS. The third constitutional argument is grounded on those portions of the President's instructions of to the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in

said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." This constitutional limitation is derived from the Fourteenth Amendment to the United States Constitution and these provisions, it has been said "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual is then as much for the nonChristian as for the Christian. The conception of civil liberty has been variously expressed thus: Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty by every other. (Spencer, Social Statistics, p. 94.) Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have . . . that man is free who is protected from injury. (II Webster's Works, p. 393.) Liberty consists in the ability to do what one caught to desire and in not being forced to do what one ought not do desire. (Montesque, spirit of the Laws.) Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.) Liberty does not import "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others . . . There is, of course, a sphere with which the individual may asserts the supremacy of his own will, and rightfully dispute the authority of any human government especially of any free government existing under a written Constitution to interfere with the exercise of that will. But it is equally true that in very well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public may demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)

Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience of the individual. (Apolinario Mabini.) Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been endowed by this Creator, subject only to such restraints as are necessary for the common welfare. As enunciated in a long array of authorities including epochmaking decisions of the United States Supreme Court, Liberty includes the right of the citizens to be free to use his faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that purpose. to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion. The chief elements of the guaranty are the right to contract, the right to choose one's employment, the right to labor, and the right of locomotion. In general, it may be said that Liberty means the opportunity to do those things which are ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.) One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good. Whenever and wherever the natural rights of citizen would, if exercises without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al., 66.) None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the course of the argument in the Dartmouth College Case before the United States Supreme Court, since a classic in forensic literature, said that the meaning of "due process of law" is, that "every citizen shall hold his life, liberty, property, an immunities under the protection of the general rules which govern society." To constitute "due process of law," as has been often held, a judicial proceeding is not always necessary. In some instances, even a hearing and notice are not requisite a rule which is especially true where much must be left to the discretion of the administrative officers in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age and customs, or newly devised in the discretion of the legislative power, in furtherance of the public good, which regards and preserves

these principles of liberty and justice, must be held to be due process of law." (Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1) "What is due process of law depends on circumstances. It varies with the subject-matter and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.) The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is applicable to all of a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature. We break off with the foregoing statement, leaving the logical deductions to be made later on. D. SLAVERY AND INVOLUNTARY SERVITUDE. The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United States Constitution particularly as found in those portions of Philippine Organic Law providing "That slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary modifications, of sections 268 to 271 inclusive of the United States Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary servitude, together wit their corollary, peonage, all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any servitude in fact involuntary, no matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.) So much for an analysis of those constitutional provisions on which petitioners rely for their freedom. Next must come a description of the police power under which the State must act if section 2145 is to be held valid. E. THE POLICE POWER. Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is the farreaching scope of the power, that it has become almost possible to limit its weep, and that among its purposes is the power to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not interested in is the right of the government to restrain liberty by the exercise of the police power.

"The police power of the State," one court has said, . . . "is a power coextensive with selfprotection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation, the judiciary rarely attempt to dam the on rushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual. The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the promotion of the general welfare and the public interest. "There can be not doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamental principles which lie at the foundation of all republican forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.) With the foregoing approximation of the applicable basic principles before us, before finally deciding whether any constitutional provision has indeed been violated by section 2145 of the Administrative Code, we should endeavor to ascertain the intention of the Legislature in enacting this section. If legally possible, such legislative intention should be effectuated. F. LEGISLATIVE INTENT. The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation, it will be remembered, assigned as reasons fort the action, the following: (1) The failure of former attempts for the advancement of the non-Christian people of the province; and (2) the only successfully method for educating the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-General adds the following; (3) The protection of the Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of introducing civilized customs among the Manguianes. The present Secretary of the Interior says of the Tigbao reservation and of the motives for its selection, the following: To inform himself of the conditions of those Manguianes who were taken together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There he found that the site selected is a good one; that creditable progress has been made in the clearing of forests, construction of buildings, etc., that there appears to be encouraging reaction by the boys to the work of the school the requirements of which they appear to meet with enthusiastic interest after the first weeks which are necessarily a somewhat trying period for children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the impression that the results obtained during the period of less than one year since the beginning of the institution definitely justify its continuance and development.

Of course, there were many who were protesting against that segregation. Such was naturally to be expected. But the Secretary of the Interior, upon his return to Manila, made the following statement to the press: "It is not deemed wise to abandon the present policy over those who prefer to live a nomadic life and evade the influence of civilization. The Government will follow its policy to organize them into political communities and to educate their children with the object of making them useful citizens of this country. To permit them to live a wayfaring life will ultimately result in a burden to the state and on account of their ignorance, they will commit crimes and make depredation, or if not they will be subject to involuntary servitude by those who may want to abuse them." The Secretary of the Interior, who is the official charged with the supervision of all the nonChristian people, has adopted as the polaris of his administration "the advancement of the nonChristian elements of our population to equality and unification with the highly civilized Christian inhabitants." This is carried on by the adoption of the following measures: (a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to leave their wild habitat and settle in organized communities. (b) The extension of the public school system and the system of public health throughout the regions inhabited by the non-Christian people. (c) The extention of public works throughout the Mohammedan regions to facilitate their development and the extention of government control. (d) Construction of roads and trials between one place and another among non-Christians, to promote social and commercial intercourse and maintain amicable relations among them and with the Christian people. (e) Pursuance of the development of natural economic resources, especially agriculture. ( f ) The encouragement of immigration into, and of the investment of private capital in, the fertile regions of Mindanao and Sulu. The Secretary adds: To attain the end desired, work of a civilizing influence have been continued among the non-Christian people. These people are being taught and guided to improve their living conditions in order that they may fully appreciate the benefits of civilization. Those of them who are still given to nomadic habits are being persuaded to abandon their wild habitat and settle in organized settlements. They are being made to understand that it is the purpose of the Government to organize them politically into fixed and per manent communities, thus bringing them under the control of the Government, to aid them to live and work, protect them from involuntary servitude and abuse, educate their children, and show them the advantages of leading a civilized life with their civilized brothers. In short,

they are being impressed with the purposes and objectives of the Government of leading them to economic, social, and political equality, and unification with the more highly civilized inhabitants of the country. (See Report of the Department for 1917.) The fundamental objective of governmental policy is to establish friendly relations with the socalled non-Christians, and to promote their educational, agricultural, industrial, and economic development and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian people in the following unequivocal terms: It shall be the duty of the Bureau of non-Christian Tribes to continue the work for advancement and liberty in favor of the region inhabited by non-Christian Filipinos and foster by all adequate means and in a systematical, rapid, and complete manner the moral, material, economic, social, and political development of those regions, always having in view the aim of rendering permanent the mutual intelligence between, and complete fusion of, all the Christian and non-Christian elements populating the provinces of the Archipelago. (Sec. 3.) May the Manguianes not be considered, as are the Indians in the United States, proper wards of the Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in the "habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan, carefully formulated, and apparently working out for the ultimate good of these people? In so far as the Manguianes themselves are concerned, the purpose of the Government is evident. Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing nothing for the advancement of the Philippine Islands. What the Government wished to do by bringing than into a reservation was to gather together the children for educational purposes, and to improve the health and morals was in fine, to begin the process of civilization. this method was termed in Spanish times, "bringing under the bells." The same idea adapted to the existing situation, has been followed with reference to the Manguianes and other peoples of the same class, because it required, if they are to be improved, that they be gathered together. On these few reservations there live under restraint in some cases, and in other instances voluntarily, a few thousands of the uncivilized people. Segregation really constitutes protection for the manguianes. Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are free, and they are not the equals of their more fortunate brothers. True, indeed, they are citizens, with many but not all the rights which citizenship implies. And true, indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the progress of the State. In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro must have their crops and persons protected from predatory men, or they will leave the country. It is no argument to say that such crimes are punished by the Penal Code, because these penalties are

imposed after commission of the offense and not before. If immigrants are to be encouraged to develop the resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the Government must be in a position to guarantee peace and order. Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must prod on the laggard and the sluggard. The great law of overwhelming necessity is all convincing. To quote again from the instructive memorandum of the Secretary of the Interior: Living a nomadic and a wayfaring life and evading the influence of civilization, they (the manguianes) are engaged in the works of destruction burning and destroying the forests and making illegal caigins thereon. Not bringing any benefit to the State but instead injuring and damaging its interests, what will ultimately become of these people with the sort of liberty they wish to preserve and for which they are now fighting in court? They will ultimately become a heavy burden to the State and on account of their ignorance they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who may want to abuse them. There is no doubt in my mind that this people a right conception of liberty and does not practice liberty in a rightful way. They understand liberty as the right to do anything they will going from one place to another in the mountains, burning and destroying forests and making illegal caigins thereon. Not knowing what true liberty is and not practising the same rightfully, how can they allege that they are being deprived thereof without due process of law? xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due process of law' apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way? To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and advancement of the class of persons in question. It will mean that this people should be let along in the mountains and in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble sense. In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more in accord with humanity and with national conscience.

xxx

xxx

xxx

The national legislation on the subject of non-Christian people has tended more and more towards the education and civilization of such people and fitting them to be citizens. The progress of those people under the tutelage of the Government is indeed encouraging and the signs of the times point to a day which is not far distant when they will become useful citizens. In the light of what has already been accomplished which has been winning the gratitude of most of the backward people, shall we give up the noble work simply because a certain element, believing that their personal interests would be injured by such a measure has come forward and challenged the authority of the Government to lead this people in the pat of civilization? Shall we, after expending sweat, treasure, and even blood only to redeem this people from the claws of ignorance and superstition, now willingly retire because there has been erroneously invoked in their favor that Constitutional guaranty that no person shall be deprived of his liberty without due process of law? To allow them to successfully invoke that Constitutional guaranty at this time will leave the Government without recourse to pursue the works of civilizing them and making them useful citizens. They will thus left in a permanent state of savagery and become a vulnerable point to attack by those who doubt, nay challenge, the ability of the nation to deal with our backward brothers. The manguianes in question have been directed to live together at Tigbao. There they are being taught and guided to improve their living conditions. They are being made to understand that they object of the government is to organize them politically into fixed and permanent communities. They are being aided to live and work. Their children are being educated in a school especially established for them. In short, everything is being done from them in order that their advancement in civilization and material prosperity may be assured. Certainly their living together in Tigbao does not make them slaves or put them in a condition compelled to do services for another. They do not work for anybody but for themselves. There is, therefore, no involuntary servitude. But they are compelled to live there and prohibited from emigrating to some other places under penalty of imprisonment. Attention in this connection is invited to the fact that this people, living a nomadic and wayfaring life, do not have permanent individual property. They move from one place to another as the conditions of living warrants, and the entire space where they are roving about is the property of the nation, the greater part being lands of public domain. Wandering from one place to another on the public lands, why can not the government adopt a measure to concentrate them in a certain fixed place on the public lands, instead of permitting them to roam all over the entire territory? This measure is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives of the government. For as people accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you can not make them live together and the noble intention of the Government of organizing them politically will come to naught. G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections and to reach a general conclusion. In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases. Could be not, however, be kept away from certain localities ? To furnish an example from the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the same law provided for the apprehension of marauding Indians. Without any doubt, this law and other similar were accepted and followed time and again without question. It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be the remedy of any oppressed Manguian? The answer would naturally be that the official into whose hands are given the enforcement of the law would have little or not motive to oppress these people; on the contrary, the presumption would all be that they would endeavor to carry out the purposes of the law intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there always exists the power of removal in the hands of superior officers, and the courts are always open for a redress of grievances. When, however, only the validity of the law is generally challenged and no particular case of oppression is called to the attention of the courts, it would seems that the Judiciary should not unnecessarily hamper the Government in the accomplishment of its laudable purpose. The question is above all one of sociology. How far, consistently with freedom, may the right and liberties of the individual members of society be subordinated to the will of the Government? It is a question which has assailed the very existence of government from the beginning of time. Now purely an ethical or philosophical subject, nor now to be decided by force, it has been transferred to the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the very existence of government renders imperatives a power to restrain the individual to some extent, dependent, of course, on the necessities of the class attempted to be benefited. As to the particular degree to which the Legislature and the Executive can go in interfering with the rights of the citizen, this is, and for a along time to come will be, impossible for the courts to determine. The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics and political theory, are of the past. The modern period has shown as widespread belief in the amplest possible demonstration of governmental activity. The courts unfortunately have sometimes seemed to trial after the other two branches of the government in this progressive march. Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an unusual exercise of that power. But a great malady requires an equally drastic remedy. Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of civilization of the Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can one say that due process of law has not been followed. To go back to our definition of due process of law and equal protection of the law, there exists a law ;

the law seems to be reasonable; it is enforced according to the regular methods of procedure prescribed; and it applies alike to all of a class. As a point which has been left for the end of this decision and which, in case of doubt, would lead to the determination that section 2145 is valid. it the attitude which the courts should assume towards the settled policy of the Government. In a late decision with which we are in full accord, Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee writes: We can seen objection to the application of public policy as a ratio decidendi. Every really new question that comes before the courts is, in the last analysis, determined on that theory, when not determined by differentiation of the principle of a prior case or line of cases, or by the aid of analogies furnished by such prior case. In balancing conflicting solutions, that one is perceived to tip the scales which the court believes will best promote the public welfare in its probable operation as a general rule or principle. But public policy is not a thing inflexible. No court is wise enough to forecast its influence in all possible contingencies. Distinctions must be made from time to time as sound reason and a true sense of justice may dictate." Our attempt at giving a brief history of the Philippines with reference to the so-called nonChristians has been in vain, if we fail to realize that a consistent governmental policy has been effective in the Philippines from early days to the present. The idea to unify the people of the Philippines so that they may approach the highest conception of nationality. If all are to be equal before the law, all must be approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be populated, and its fertile regions must be developed. The public policy of the Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said, for their own good and the good of the country. Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the best considered case is toward non-interference on the part of the courts whenever political ideas are the moving consideration. Justice Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final decision of the many grave questions which this case presents, the courts must take "a chance," it should be with a view to upholding the law, with a view to the effectuation of the general governmental policy, and with a view to the court's performing its duty in no narrow and bigoted sense, but with that broad conception which will make the courts as progressive and effective a force as are the other departments of the Government. We are of the opinion that action pursuant to section 2145 of the Administrative Code does not deprive a person of his liberty without due process of law and does not deny to him the equal protection of the laws, and that confinement in reservations in accordance with said section does not constitute slavery and involuntary servitude. We are further of the opinion that section 2145 of the Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional.

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. This is the true ruling of the court. Costs shall be taxes against petitioners. So ordered. Arellano, C.J., Torres and Avancea, JJ., concur.

Separate Opinions CARSON, J., concurring: I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the prevailing, opinion. The words "non-Christian' have a clear, definite and well settled signification when used in the Philippine statute-book as a descriptive adjective, applied to "tribes," "people," or "inhabitants," dwelling in more or less remote districts and provinces throughout the Islands. Justice Malcolm, as I think, correctly finds that these words, as used in this connection in our statute-book, denote the 'low grace of civilization" of the individuals included in the class to which they are applied. To this I would add that the tests for the determination of the fact that an individual or tribes is, or is not of the "non-Christian" are, and throughout the period of American occupation always have been, "the mode of life, the degree of advancement in civilization, and connection or lack of connection with some civilized community." (Cf. letter of Collector of Internal Revenue dated September 17, 1910, and set out in the principal opinion.) The legislative and administrative history of the Philippine Islands clearly discloses that the standard of civilization to which a specific tribe must be found to have advanced, to justify its removal from the class embraces with the descriptive term "non-Christian," as that term is used in the Philippine statute-book, is that degree of civilization which results in a mode of life within the tribe, such that it is feasible and practicable to extend to, and enforce upon its membership the general laws and regulations, administrative, legislative, and judicial, which control the conduct of the admitted civilized inhabitants of the Islands; a made of life, furthermore, which does not find expression in tribal customs or practices which tend to brutalize or debauch the members of the tribe indulging in such customs or practices, or to expose to loss or peril the lives or property of those who may be brought in contact with members of the tribe. So the standard of civilization to which any given number or group of inhabitants of particular province in these Islands, or any individual member of such a group, must be found to have advanced, in order to remove such group or individual from the class embraced within the statutory description of "non-Christian," is that degree of civilization which would naturally and normally result in the withdrawal by such persons of permanent allegiance or adherence to a "non-Christian" tribe, had they at any time adhered to or maintained allegiance to such a tribe; and which would qualify them whether they reside within or beyond the habitat of a "non-Christian" tribe, not only to maintain a mode of life independent of a apart from that maintain by such tribe, but a mode of

life as would not be inimical to the lives or property or general welfare of the civilized inhabitants of the Islands with whom they are brought in contact. The contention that, in this particular case, and without challenging the validity of the statute, the writ should issue because of the failure to give these petitioners, as well as the rest of the fifteen thousand Manguianes affected by the reconcentration order, an opportunity to be heard before any attempt was made to enforce it, begs the question and is, of course, tantamount to a contention that there is no authority in law for the issuance of such an order. If the fifteen thousand manguianes affected by the order complained of had attained that degree of civilization which would have made it practicable to serve notice upon, and give an opportunity for a real hearing, to all the members of the tribe affected by the order, it may well be doubted whether the provincial board and the Secretary of the Interior would have been justified in its enforcement By what proceeding known to the law, or to be specially adopted in a particular case, could the offices of any province provide for a genuine hearing upon a proposal to issue a reconcentration order upon a head-hunting tribe in the north of the Island of Luzon; or upon one of the nomadic tribes whose habitat is in the mountain fastnesses of Mindanao, and whose individual members have no fixed or known place of residence, or upon the fifteen thousand Manguianes roaming in the wilds of Mindoro. Of course, friendly headmen or chief might and, as a rule, should be consulted, after the practice in the United States when tribes or groups of American Indians have been placed upon reservations; but since non-Christian head men and chiefs in the Philippines have no lawful authority to bind their acts or their consent, the objection based on lack of a hearing, would have the same force whether the issuance of a reconcentration order was or was not preceded by a pow-wow of this kind. The truth of the mater is that the power to provide for the issuance of such orders rests upon analogous principles to those upon which the liberty and freedom or action of children and persons of unsound minds is restrained, without consulting their wishes, but for their own good and the general welfare. The power rests upon necessity, that "great master of all things," and is properly exercised only where certain individuals or groups of individual are found to be of such a low grade of civilization that their own wishes cannot be permitted to determine their mode of life or place of residence. The status of the non-Christian inhabitants of these Islands, and the special and necessarily paternal attitude assume toward them by the Insular Government is well illustrated by the following provisions found in the Administrative Code of 1917: SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). It shall be the duty of the Bureau of non-Christian tribes to continue the work for advancement and liberty in favor of the regions inhabited by non-Christian Filipinos and to foster by all adequate means and in a systematic, rapid, and completely manner the moral, material, economic, social and political development of those regions, always having in view the aim of rendering permanent the mutual intelligence between and complete fusion of all the Christian and non-Christian elements populating the provinces of the Archipelago.

SEC. 2116. Township and settlement fund. There shall be maintained in the provincial treasuries of the respective specially organized provinces a special fund to be known as the township and settlement fund, which shall be available, exclusively, for expenditures for the benefit of the townships and settlements of the province, and non-Christian inhabitants of the province, upon approval of the Secretary of the Interior. As I understand it, the case at bar does not raise any real question as to the jurisdiction of the courts of these Islands in habeas corpus proceedings, to review the action of the administrative authorities in the enforcement of reconcentration orders issued, under authority of section 2145 of the Administrative Code, against a petitioner challenging the alleged fact that he is a "nonChristian" as that term is used in the statute. I, therefore, express no opinion on that question at this time.

JOHNSON, J., dissenting: I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not denied. I cannot give my consent to any act which deprives the humblest citizen of his just liberty without a hearing, whether he be a Christian or non-Christian. All persons in the Philippine Islands are entitled to a hearing, at least, before they are deprived of their liberty.

MOIR, J., dissenting: I dissent. I realize that a dissenting opinion carries little weight, but may sense of justice will not permit me to let this decision go on record without expressing may strong dissent from the opinion of Justice Malcolm, concurred in by a majority of the court. I shall not attempt to analyze the opinion or to go into the question in detail. I shall simply state, as briefly as may be, the legal and human side of the case as it presents itself to my mind. The facts are that one Rubi and various other Manguianes in the Province of Mindoro were ordered by the Provincial governor of Mindoro to remove their residence from their native habitat and to establish themselves on a reservation at Tigbao in the Province of Mindoro and to remain there, or be punished by imprisonment if they escaped. This reservation, as appears from the resolution of the provincial board, extends over an area of 800 hectares of land, which is approximately 2,000 acres, on which about three hundred manguianes are confined. One of the Manguianes, Dabalos, escaped from the reservation and was taken in hand by the provincial sheriff and placed in prision at Calapan, solely because he escaped from the reservation. The Manguianes used out a writ of habeas corpus in this court, alleging that they are deprived of their liberty in violation of law.

The Solicitor-General of the Philippine Islands makes return to the writ copied in the majority opinion which states that the provincial governor of Mindoro with the prior approval of his act by the Department Secretary ordered the placing of the petitioners and others on a reservation. The manguianes, it is stated on page 694 of the majority opinion, "are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are peaceful, timid, primitive, seminomadic people. They number approximately 15,000 (?). The manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have no progressed sufficiently in civilization to make it practicable to bring them under any for of municipal government." It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not including smaller islands which together make the Province of Mindoro) has an area of 3,851 square miles and a populations of 28, 361 of which 7, 369 are wild or uncivilized tribes (Manguianes). This appears to be the total Mangyan population of the province. The total population was less than seven to the mile (Vol. 2, P.I. Census, pp. 30 and 407). The Island is fertile, heavily wooded and well watered. It has no savage population, but it is sparsely settled by Christian Filipinos along the coast and by Manguianes. The Manguianes roamed its mountains and valleys, fishing and hunting at will long before Magallanes [Magellan] anchored his boats in the water of Cebu. They have made little or no progress in the ways of civilization. "They are a peaceful, timid, primitive, seminomadic people," whom the Government of the Philippines Islands would bring under the beneficient influence of civilization and progress. The law provides for it in section 2145 of the Administrative Code, and for those who like Dadalos do not take kindly to the ways provided for civilizing them section 2759 provides the punishment. The attorney for the petitioners has raised various constitutional questions, but only the fundamental one will be considered by me. It is that the sections of the Administrative Code, 2145 and 2759, quoted in the majority opinion, are in violation of the first paragraph of section 3 of the Act of Congress of August 29, 1916, which reads as follows: That no law shall be enacted in said Islands which shall deprive any person of life, liberty or property without due process of law, or deny to any person therein the equal protection of the laws. It is not necessary to argue that a Mangyan is one of the persons protected by that provision. The Attorney-General argues that the treatment provided for the Manguianes is similar to that accorded the Indians in the United States, and reference is made all through the court's decision to the decisions of the United States Supreme Court with reference to the Indians. It is not considered necessary to go into these cases for the simple reason that all the Indians nations in the United

States were considered as separate nations and all acts taken in regard to them were the result of separate treaties made by the United States Government with the Indian nations, and, incompliance with these treaties, reservations were set apart for them on which they lived and were protected form intrusion and molestation by white men. Some these reservations were larger than the Islands of Luzon, and they were not measured in hectares but in thousands of square miles. The Manguianes are not a separate state. They have no treaty with the Government of the Philippine Islands by which they have agreed to live within a certain district where they are accorded exclusive rights. They are citizens of the Philippine Islands. Legally they are Filipinos. They are entitled to all the rights and privileges of any other citizen of this country. And when the provincial governor of the Province of Mindoro attempted to take them from their native habitat and to hold them on the little reservation of about 800 hectares, he deprived them of their rights and their liberty without due process of law, and they were denied the equal protection of the law. The majority opinion says "they are restrained for their own good and the general good of the Philippines." They are to be made to accept the civilization of the more advanced Filipinos whether they want it or not. They are backward and deficient in culture and must be moved from their homes, however humble they may be and "bought under the bells" and made to stay on a reservation. Are these petitioners charged with any crime? There is no mention in the return of the SolicitorGeneral of the Philippine Islands of any crime having been committed by these "peacefully, timid, primitive, semi-nomadic people." A memorandum of the Secretary of the Interior of the Philippine Islands is copied in extenso in the majority opinion, and from it I gather the nature of their offense which is that Living a nomadic and wayfaring life and evading the influence of civilization, they (the manguianes) are engaged in the works of destruction burning and destroying the forests and making illegal caigins thereon. No bringing any benefit to the State but, instead, injuring and damaging its interests, what will ultimately become of those people with the sort of liberty they wish to preserve and for which they are not fighting in court? They will ultimately become a heavy burden to the State and, on account of their ignorance, they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who may want to abuse them. There is no doubt in my mind that this people has not a right conception of liberty and does not practice liberty in a rightful way. They understand liberty as the right to do anything they will going from one place to another in the mountains, burning and destroying forests and making illegal caigins thereon. Not knowing what true liberty is and not practising the same rightfully, how can they are being deprived thereof without due process of law? xxx xxx xxx

But does the constitutional guaranty that "no person shall be deprived of his liberty without due process of law" apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way? To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and advancement of the class of persons in question. It will mean that this people be let alone in the mountains and in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble sense. In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more in accord with humanity and with national conscience. xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more towards the education and civilization of such people and fitting them to be citizens. There appear to be two intimations or charges in this memorandum; one is that the Manguianes destroy the forest by making a caigin. What is a "caigin?" Simply this. These people move their camp or place of abode frequently and when they do move to a new place, it is necessary to clear the land in order to plant corn and camotes (sweet potatoes) and they cut down the smaller trees and burn these around the larger ones, killing them, so that they can plant their crops. The fires never spread in the tropical undergrowth of an island like Mindoro, but the trees within the caigin are killed and crops are planted and harvested. This land may be abandoned later on due to superstition, to a lack of game in the neighborhood, to poor crops from exhausted fertility, or to a natural desire to move on. Granting that the Manguianes do make caigins or clear lands in spots and then abandon them for the more fertile lands, which every man knows to be just over the hills, we cannot see that they are committing such a great abuse as to justify incarcerating them on a small tract of land for incarceration it is and nothing less. The second intimation or charge is that "they will become a heavy burden to the state and on account of their ignorance they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who want to abuse them." They have never been a burden to the state and never will be. They have not committed crimes and, when they do, let the law punish them." The authorities are anticipating too much from these "peaceful, timid, primitive, semi-nomadic people." Their history does not demonstrate that we must expect them to commit crimes and jail them to prevent the possibility. But the Secretary says "they will be subjected to involuntary servitude by those want to abuse them." Are they more liable to be subjected to involuntary servitude when left free to roam their native hills and gain a livelihood as they have been accustomed to for hundreds of years, than they will be if closely confined on a narrow

reservation from which they may not escape without facing a term in jail? Is not more likely that they will be glad to exchange their "freedom" on a small reservation for the great boon of binding themselves and their children to the more fortunate Christian Filipinos who will feed them and clothe them in return of their services.? It think it not only probable but almost a certainty that they will be all be subjected to involuntary personal servitude if their freedom is limited as it has been. How will they live? There may be persons who are willing to lend them money with which to buy food on the promise that they will work for them. And if they accept the loan and do not work for the lender we have another law on the statute books, Act No. 2098, into whose noose they run their necks, and they may be fined not more than two hundred pesos or imprisonment for not exceeding six months or both, and when the sentence expires they must again go into debt or starve, and if they do not work will again go to jail, and this maybe repeated till they are too old to work and are cast adrift. The manguianes have committed no offenses and are charged with none. It does not appear they were ever consulted about their reconcentration. It does not appear that they had any hearing or were allowed to make any defense. It seems they were gathered here and there whenever found by the authorities of the law and forcibly placed upon the reservation, because they are "nonChristian," and because the provincial governor ordered it. Let it be clear there is no discrimination because of religion. The term "non-Christian" means one who is not a Christian Filipino, but it also means any of the so-called "wild" or backward tribes of the Philippines. These non-Christian tribes are Moros, Igorrotes, Bukidnons, Ifugaos, Manguianes and various others, about one millions souls all together. Some of them, like the Moros, Tinguianes and Ifugaos, have made great progress in civilization. The have beautiful fields reclaimed by hard labor they have herds of cattle and horses and some few of them are well educated. Some of the non-Christians, like the Aetas and the Negritos, are very low in the scale of civilization, but they are one and all "non-Christians," as the term is used and understood in law and in fact. All of them, according to the court's opinion under the present law, may be taken from their homes and herded on a reservation at the instance of the provincial governor, with the prior approval of the department head. To state such a monstrous proposition is to show the wickedness and illegality of the section of the law under which these people are restrained of their liberty. But it is argued that there is no probability of the department head ever giving his approval to such a crime, but the fact that he can do it and has done it in the present case in what makes the law unconstitutional. The arbitrary and unrestricted power to do harm should be the measure by which a law's legality is tested and not the probability of doing harm. It has been said that this is a government of laws and not of men; that there is no arbitrary body of individuals; that the constitutional principles upon which our government and its institutions rest do not leave room for the play and action of purely personal and arbitrary power, but that all in authority are guided and limited by these provisions which the people have, the through the organic law, declared shall be the measure and scope of all control exercised over them. In particular the fourteenth amendment, and especially the equal protection clause, thereof, forbids that the individual shall be subjected to any arbitrary exercise of the powers of government; it was intended to prohibit, and does prohibit, any arbitrary deprivation of life or liberty, or arbitrary spoliation of property.

As we have seen, a statute which makes a purely arbitrary or unreasonable classification, or which singles out any particular individuals or class as the subject of hostile and discriminating legislation, is clearly unconstitutional as being opposed to the fourteenth amendment and especially to the equal protection clause thereof. This is a plain case, and requires no further discussion. (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p. 366.) When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for its is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and, in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of Massachusetts Bill of Rights, the Government of Commonwealth "may be a government of law and not of men." For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself. (Yick Wo vs. Hopkins, 118 U.S., 374.) It is said that the present law is an old Act being substance Act No. 547 of the Philippine Commission. But it has never been brought before this court for determination of its constitutionality. No matter how beneficient the motives of the lawmakers if the lawmakers if the law tends to deprive any man of life, liberty, or property without due process law, it is void. In may opinion the acts complained of which were taken in conformity with section 2145 of the Administrative Code not only deprive these Manguianes of their liberty, without due process of law, but will in all probability deprive them of their life, without due process of law. History teaches that to take a semi-nomadic tribe from their native fastnesses and to transfer them to the narrow confines of a reservation is to invite disease an suffering and death. From my long experience in the Islands, I should say that it would be a crime of title less magnitude to take the Ifugaos from their mountain homes where they have reclaimed a wilderness and made it a land of beauty and fruitfulness and to transfer them to the more fertile, unoccupied, malaria infested valleys which they look down upon from their fields than it would be to order their decapitation en masse.

There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in exactly the same category as the Manguianes. If the Manguianes may be so taken from their native habitat and reconcentrated on a reservation in effect an open air jail then so may the Ifugaos, so may the Tinguianes, who have made more progress than the Ifugaos, and so may the Moros. There are "non-Christian" in nearly every province in the Philippine Islands. All of the thirty-nine governors upon the prior approval of the head of the department, have the power under this law to take the non-Christian inhabitants of their different provinces form their homes and put them on a reservation for "their own good and the general good of the Philippines," and the court will grant them no relief. These unfortunate citizens of the Philippine Islands would hold their liberty, and their lives, may be, subject to the unregulated discretion of the provincial governor. And who would be safe? After the reservation is once established might not a provincial governor decide that some political enemy was a non-Christian, and that he would be safer on the reservation. No matter what his education and culture, he could have no trial, he could make no defense, the judge of the court might be in a distant province and not within reach, and the provincial governor's fiat is final. The case of the United States vs. Crook (Federal Cases 14891), cited in the majority opinion, should be quoted at length. District Judge Dundy said: During the fifteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under consideration. On the one side, we have a few of the remnants of a once numerous and powerful, but now weak, insignificant, unlettered, and generally despised race; and the other, we have the representative of one of the most powerful, most enlightened, and most christianized nations of modern times. On the one side, we have the representatives of this wasted race coming into this national tribunal of ours, asking for justice and liberty to enable them to adopt our boasted civilization, and to pursue the arts of peace, which have made us great and happy as a nation; on the other side, we have this magnificent, if not magnanimous, government, resisting this application with the determination of sending these people back to the country which is to them less desirable perpetual imprisonment in their own native land. But I think it is creditable to the heart and mind of the brave and distinguished officer who is made respondent herein to say that he has no sort of sympathy in the business in which he is forced by his position to bear a part so conspicuous; and, so far as I am individually concerned, I think it not improper to say that, if the strongest possible sympathy could give the relators title to freedom, they would have been restored to liberty the moment the arguments in their behalf were closed. no examination or further thought would then have been necessary or expedient. But in a country where liberty is regulated by law, something more satisfactory and enduring than mere sympathy must furnish and constitute the rule and basis of judicial action. It follows that this case must be examined and decided on principles of law, and that unless the relators are entitled to their discharge under the constitution or laws of the United States, or some treaty, they must be remanded to the custody of the officer who caused their arrest, to be returned to the Indian Territory which they left without the consent of the government.

On the 8th of April, 1879, the relators Standing Bear and twenty-five others, during the session of the court held at that time of Lincoln, presented their petition, duly verified, praying for the allowance of a writ of habeas corpus and their final discharged from custody thereunder. The petition alleges, in substance, that the relators are Indians who have formerly belonged to the Ponca tribe of Indians now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. The writ was issued and served on the respondent on the 8th day of April, and, the distance between the place where the writ was made returnable and the place where the relators were confined being more than twenty miles, ten days were alloted in which to make return. On the 18th of April the writ was returned, and the authority for the arrest and detention is therein shown. The substance of the return to the writ, and the additional statement since filed, is that the relators are individual members of, and connected with, the Ponca Tribe of Indians; that they had fled or escaped from a reservation situated in some place within the limits of the indian Territory had departed therefrom without permission from the government; and, at the request of the secretary of the interior, the general of the army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian reservation, and that they were in his custody for the purpose of being returned to the Indian Territory. It is claimed upon the one side, and denied upon the other, that the relators had withdrawn and severed, for all time, their connection with the tribe to which they belonged; and upon this point alone was there any testimony produced by either party hereto. The other matter stated in the petition and the return to the writ are conceded to be true; so that the questions to be determined are purely questions of law. On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca tribe of Indians, by which a certain tract of country, north of the Niobrara river and west of the Missouri, was set apart for the permanent home of the aid Indians, in which the government agreed to protect them during their good behaviour. But just when or how, or why, or under what circumstances, the Indians left their reservation in Dakota and went to the Indian Territory does not appear. xxx xxx xxx

A question of much greater importance remains for consideration, which, when determined, will be decisive of this whole controversy. This relates to the right of the government to arrest and hold the relators for a time, for the purpose of being returned to a point in the Indian Territory from which it is alleged the Indians escaped. I am not vain enough to think that I can do full justice to a question like the one under consideration. But, as the mater furnishes so much valuable material for discussion, and so much food for reflection, I shall try to present it as viewed from my own standpoint, without reference to consequences or criticisms, which, though not specially invited, will be sure to follow. xxx xxx xxx

On the 15th day of August, 1876, congress passed the general Indian appropriation bill, and in it we find a provision authorizing the secretary of the interior to use $25,000 for the removal of the Poncas to the Indian Territory, and providing them a home therein, with consent of the tribe. (19 Sta., 192.) xxx xxx xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a portion of the same, until two or three years ago, when they removed therefrom, but whether by force or otherwise does not appear. At all event, we find a portion of them, including the relators, located at some point in the Indian Territory. There, the testimony seems to show, is where the trouble commenced. Standing Bear, the principal witness, states that out of five hundred and eighty-one Indians who went from the reservation in Dakota to the Indian Territory, one hundred and fifty-eight died within a year or so, and a great proportion of the others were sick and disabled, caused, in a great measure, no doubt, from change of climate; and to save himself and the survivors of his wasted family, and the feeble remnant of his little band of followers, he determined to leave the Indian Territory and return to his old home, where, to use his own language, "he might live and die in peace, and be buried with his fathers." He also stated that he informed the agent of their final purpose to leave, never to return, and that he and his followers had finally, fully, and forever severed his and their connection with the Ponca tribe of Indians, and had resolved to disband as a tribe, or band of Indians, and to cut loose from the government, go to work, become self-sustaining, and adopt the habits and customs of a higher civilization. To accomplish what would seem to be a desirable and laudable purpose, all who were able to do so went to work to earn a living. The Omaha Indians, who speak the same language, and with whom many of the Poncas have long continued to intermarry, gave them employment and ground to cultivate, so as to make them self-sustaining. And it was when at the Omaha reservation, and when thus employed, that they were arrested by order of the government, for the purpose of being taken back to the Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or necessity, of removing them by force from their own native plains and blood relations to a far-off country, in which they can see little but new-made graves opening for their reception. The land from which they fled in fear has no attractions for them. The love of home and native land was strong enough in the minds of these people to induce them to brave every peril to return and live and die where they had been reared. The bones of the dead son of Standing Bear were not to repose in the land they hoped to be

leaving forever, but were carefully preserved and protected and formed a part of what was to them melancholy procession homeward. Such instances of parental affections, and such love home and native land, may be heathen in origin, but it seems to that they are not unlike Christian in principle. And the court declared that the Indians were illegally held by authority of the United States and in violation of their right to life, liberty, and the pursuit of happiness, and ordered their release from custody. This case is very similarly to the case of Standing Bear and others. I think this Court should declare that section 2145 and 2759 of the Administrative Code of 1917 are unconstitutional, null and void, and that the petitioners are illegally restrained of their liberty, and that they have been denied the equal protection of the law, and order the respondents immediately to liberate all of the petitioners.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45685 November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION, petitioners, vs. JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents. Office of the Solicitor General Tuason and City Fiscal Diaz for the Government. De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation. Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent Cu Unjieng. No appearance for respondent Judge.

LAUREL, J.: This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorari and of prohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the

application of the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibit the said Court of First Instance from taking any further action or entertaining further the aforementioned application for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No. 41200). 1 Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of First Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case. The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of time spent by the court as well as in the volume in the testimony and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight years of prision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six months of prision correccional to seven years, six months and twenty-seven days 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 of the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937. On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent Mariano Cu Unjieng. The private prosecution also filed an

opposition on April 5, 1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of the laws for the reason that its applicability is not uniform throughout the Islands and because section 11 of the said Act endows the provincial boards with the power to make said law effective or otherwise in their respective or otherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except with respect to the questions raised concerning the constitutionality of Act No. 4221. On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition for probation for the reason that: . . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto judicial. On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying probation and a notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation and purely as a matter of courtesy to the person who invited me (him)." On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of execution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to said judgment.

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion should be denied with respect to certain attorneys signing the same who were members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to the circumstances under which said motion for leave to intervene as amici curiae was signed and submitted to court was to have been heard on August 19, 1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to put an end to what they alleged was an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent inability of the judicial machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng." The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining order by this court on August 21, 1937. To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction: I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the following reason: (1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila. (2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special provision, the term "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general application, it is also true that Act No. 4221 is not a law of general application because it is made to apply only to those provinces in which the respective provincial boards shall have provided for the salary of a probation officer. (3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it has provided for the salary of a probation officer as required by section 11 thereof; it being immaterial that there is an Insular Probation Officer willing to act for the City of

Manila, said Probation Officer provided for in section 10 of Act No. 4221 being different and distinct from the Probation Officer provided for in section 11 of the same Act. II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason that: (1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of applications for probation. (2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became final and executory at the moment of its rendition. (3) No right on appeal exists in such cases. (4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same. III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was convicted by final judgment of this court, which finding is not only presumptuous but without foundation in fact and in law, and is furthermore in contempt of this court and a violation of the respondent's oath of office as ad interim judge of first instance. IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail. Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law. In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen years of age or over who are convicted of crime, is unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws because it confers upon the provincial board of its province the absolute discretion to make said law operative or otherwise in their respective provinces, because it constitutes an unlawful and improper delegation to the provincial boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, in contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First Instance of different provinces without uniformity. In another

supplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the private prosecution may intervene in probation proceedings and may attack the probation law as unconstitutional; and that this court may pass upon the constitutional question in prohibition proceedings. Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each and every one of the foregoing proposition raised by the petitioners. As special defenses, respondents allege: (1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorari or of prohibition. (2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy prayed for by them before the trial court and was still pending resolution before the trial court when the present petition was filed with this court. (3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying probation is unappealable. (4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the question as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motion of herein petitioners themselves. (5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over the case and elevate the

proceedings to this court, should not be tolerated because it impairs the authority and dignity of the trial court which court while sitting in the probation cases is "a court of limited jurisdiction but of great dignity." (6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending resolution by the trial court, the present action would not lie because the resolution of the trial court denying probation is appealable; for although the Probation Law does not specifically provide that an applicant for probation may appeal from a resolution of the Court of First Instance denying probation, still it is a general rule in this jurisdiction that a final order, resolution or decision of an inferior court is appealable to the superior court. (7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being appealable, the same had not become final and executory for the reason that the said respondent had filed an alternative motion for reconsideration and new trial within the requisite period of fifteen days, which motion the trial court was able to resolve in view of the restraining order improvidently and erroneously issued by this court.lawphi1.net (8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying probation is not final and unappealable when he presented his answer to the motion for reconsideration and agreed to the postponement of the hearing of the said motion. (9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent upon the accused to file an action for the issuance of the writ 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 hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that this power to alter or modify an order or resolution is inherent in the courts and may be exercise either motu proprio or upon petition of the proper party, the petition in the latter case taking the form of a motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court cannot order execution of the same while it is on appeal, for then the appeal would not be availing because the doors of probation will be closed from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827). In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power, does not infringe the equal protection clause of the Constitution, and does not encroach upon the pardoning power of the Executive. In an additional memorandum filed on the same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from constitutional objections and contend, in addition, that the private prosecution may not intervene in probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of this court and filed anew on November 5, 1937. This memorandum elaborates on some of the points raised by the respondents and refutes those brought up by the petitioners. In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said application assumed the task not only of considering the merits of the application, but of passing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look into the circumstances attending the commission of the offense, this does not authorize it to reverse the findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs, averments, and pleadings of the parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the intergrated judicial system of the nation. After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional. Considerations of these issues will involve a discussion of certain incidental questions raised by the parties. To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be

determined by the courts unless that question is properly raised and presented inappropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.) The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought in the name of the Government of the Philippines. It has also been held that the constitutionality of a statute may be questioned 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 not met squarely by the respondent in a demurrer. A point was raised "relating to the propriety of the constitutional question being decided in original proceedings in prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed the judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said: By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original jurisdiction over courts of first instance, when such courts are exercising functions without or in excess of their jurisdiction. It has been held by that court that the question of the validity of the criminal statute must usually be raised by a defendant in the trial court and be carried regularly in review to the Supreme Court. (CadwalladerGibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous persons and extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the act's validity promptly before it and decide in the interest of the orderly administration of justice. The court relied by analogy upon the cases of

Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask a decision on the merits. In view of the broad powers in prohibition granted to that court under the Island Code, we acquiesce in the desire of the parties. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statute the constitutionality of which is questioned, because in such cases the interior court having jurisdiction may itself determine the constitutionality of the statute, and its decision may be subject to review, and consequently the complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.) Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which prescribes in detailed manner the procedure for granting probation to accused persons after their conviction has become final and before they have served their sentence. It is true that at common law the authority of the courts to suspend temporarily the execution of the sentence is recognized and, according to a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law the power of the court was limited to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through Chief Justice White: Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a

discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided belongs to the executive department. Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature. It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the question has not been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been squarely presented not only before this court by the petitioners but also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court below, declined to pass upon the question on the ground that the private prosecutor, not being a party whose rights are affected by the statute, may not raise said question. The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack made on the constitutionality of a statute by one who has no interest in defeating it because his rights are not affected by its operation. The respondent judge further stated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that the constitutional question was raised before it, it refused to consider the question solely because it was not raised by a proper party. Respondents herein reiterates this view. The argument is advanced that the private prosecution has no personality to appear in the hearing of the application for probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of the constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to be

given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the 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 though, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the

court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.: . . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their representatives; that to an accusation by the people of Michigan of usurpation their government, a statute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if the statute relied on in justification is unconstitutional, it is statute only in form, and lacks the

force of law, and is of no more saving effect to justify action under it than if it had never been enacted. The constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow . . . The legislature and the respondents are not the only parties in interest upon such constitutional questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by an unconstitutional act of the legislature: "The people have a deep and vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.) In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the state may bring the action, the Supreme Court of Kansas said: . . . the state is a proper party indeed, the proper party to bring this action. The state is always interested where the integrity of its Constitution or statutes is involved. "It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.) Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county attorney, may exercise his bet judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122). Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said: It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district

attorney to plead that a statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not, merely because he believed a certain statute to be unconstitutional forbid the district attorney to file a bill of information charging a person with a violation of the statute. In other words, a judge should not judicially declare a statute unconstitutional until the question of constitutionality is tendered for decision, and unless it must be decided in order to determine the right of a party litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers the statute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g., the state auditor and state treasurer, should not decline to perform ministerial duties imposed upon them by a statute, on the ground that they believe the statute is unconstitutional. It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is compelled to submit to the court, by way of a plea, that one of the statutes is unconstitutional. If it were not so, the power of the Legislature would be free from constitutional limitations in the enactment of criminal laws. The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act and, not authorized challenge the validity of the Act in its application outside said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.) The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no reason for considering the People of the Philippines estopped from nor assailing its validity. For courts will pass upon a constitutional questions only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon the statute and treating it as valid until it is held void by the courts in proper cases. It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of the instant case. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the part of wisdom, and just respect for the

legislature, renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed. Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new addition to our statute books and its validity has never before been passed upon by the courts; that may persons accused and convicted of crime in the City of Manila have applied for probation; that some of them are already on probation; that more people will likely take advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about four years since his first conviction. All wait the decision of this court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the Supreme Court of the United States. A more binding authority in support of the view we have taken can not be found. We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional? Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of the essence of judicial duty. This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the

legislature approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. "The question of the validity of every statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath to support the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution except in a clear case. This is a proposition too plain to require a citation of authorities. One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the President of the Philippines had already expressed his opinion against the constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and independence of this court. We take notice of the fact that the President in his message dated September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised his constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his reasons are not binding upon us in the determination of actual controversies submitted for our determination. Whether or not the Executive should express or in any manner insinuate his opinion on a matter encompassed within his broad constitutional power of veto but which happens to be at the same time pending determination in this court is a question of propriety for him exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgment on way or another and prevent us from taking what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us to make any vehement affirmance during this formative period of our political history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it. The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies the equal protection of the laws. 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 Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning power can only be exercised "after conviction". So, too, under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in the United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense committed, together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and of the power of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrence of the National Assembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes to state that the pardoning power has remained essentially the same. The question is: Has the pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act? 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., , and cases cited.) " . . . where the pardoning power is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void. But does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the opinion of the court that under the common law the power of the court was limited to temporary suspension and that the right to suspend sentenced absolutely and permanently was vested in the executive branch of the government and not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise discretion the infinite variations which may be presented to them for judgment, recourse must be had Congress whose legislative power on the subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation Association and others to agitate for the enactment by Congress of a federal probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an appropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.) In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act was not considered but was assumed. The court traced the history of the Act and quoted from the report of the Committee on the Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement: Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation either, by suspending sentence or by placing the defendants under state probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to suspend sentenced. In the same opinion the court pointed out the necessity for action by Congress if the courts were to exercise probation powers in the future . . . Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee again favorably reported a probation bill to the House, but it was never reached for definite action. If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present time

every state has a probation law, and in all but twelve states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.) The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said: Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no manner to encroach upon the pardoning power of the President. This case will be found to contain an able and comprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act. We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to Congress as possessing the requisite power to enact probation laws, that a federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and consistently sustained by the inferior federal courts in a number of earlier cases. We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to denominate and define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courts particularly the trial courts large discretion in imposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served by vesting this power in the courts, they being in a position to best determine the penalties which an individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence merely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case to submit to the Chief Executive, through the Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances are attendant in the commission of a crime and the law provides for a penalty composed of two indivisible penalties, the courts may allow such circumstances to offset one another in consideration of their number and importance,

and to apply the penalty according to the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each periods, in case the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are allowed to fix any amount within the limits established by law, considering not only the mitigating and aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who has not acted without discernment, but always lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 of the same Code provides that in case of "incomplete self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having in mind the social danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.) Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty person is more than seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convict shall become insane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the execution of said sentence shall be suspended with regard to the personal penalty during the period of such insanity or imbecility (art. 79). But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more clearly demonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of

the original Act and section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by permitting the suspension of the execution of the judgment in the discretion of the trial court, after due hearing and after investigation of the particular circumstances of the offenses, the criminal record, if any, of the convict, and his social history. The Legislature has in reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as the conditions of probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial function under and within the limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal causes, with which the executive can have nothing to do." (Ex 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 alone is vested with the power to pardon after final sentence has been imposed by the courts, the power of the courts to imposed any penalty which may be from time to time prescribed by law and in such manner as may be defined cannot be questioned." We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.) Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew

[1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities holding that the courts may be legally authorized by the legislature to suspend sentence by the establishment of a system of probation however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise ordered by the court, and required that the convicted person be placed under the charge of a parole or peace officer during the term of such suspension, on such terms as the court may determine, was held constitutional and as not giving the court a power in violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.) Probation and pardon are not coterminous; nor are they the same. They are actually district and different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said: . . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was adopted, are totally distinct and different in their nature. The former was always a part of the judicial power; the latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and the civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense. It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly familiar with the principles governing the power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words of the constitution were used to express the authority formerly exercised by the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any part of the judicial functions to suspend sentence, and it was never intended that the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments, that criminal courts has so long maintained. The two powers, so distinct and different in their nature and character, were still left separate and distinct, the one to be exercised by the executive, and the other by the judicial department. We therefore conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction, a power inherent in such courts at common law, which was understood when the constitution was adopted to be an ordinary judicial function, and which, ever since its adoption, has been exercised of legislative power under the constitution. It does not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced from the earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.) In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of the Act provides that the probation may be definitely terminated and the probationer finally discharged from supervision only after the period of probation shall have been terminated and the probation officer shall have submitted a report, and the court shall have found that the probationer has complied with the conditions of probation. The probationer, then, during the period of probation, remains in legal custody subject to the control of the probation officer and of the court; and, he may be rearrested upon the 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 find prescribed by the criminal laws. For this reason its application is as purely a judicial act as any other sentence carrying out the law deemed applicable to the offense. The executive act of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or rather is outside of and above it. There is thus no conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.) Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is

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

upheld quite uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.) We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in respect to those serving their probationary sentences, remains as full and complete as if the Probation Law had never been enacted. The President may yet pardon the probationer and thus place it beyond the power of the court to order his rearrest and imprisonment. (Riggs vs. United States [1926], 14 F. [2d], 5, 7.) 2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative power? Under the constitutional system, the powers of government are distributed among three coordinate and substantially independent organs: the legislative, the executive and the judicial. Each of these departments of the government derives its authority from the Constitution which, in turn, is the highest expression of popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. The power to make laws the legislative power is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free government. It has since become an accepted corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is charged. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the

delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.) The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the central authorities; and hence while the rule is also fundamental that the power to make laws cannot be delegated, the creation of the municipalities exercising local self government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribed local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to delegate legislative power to such agencies in the territories of the United States as it may select. A territory stands in the same relation to Congress as a municipality or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be republican in form because of its adoption of the initiative and referendum has been held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked upon with favor by certain progressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines provides that "The National Assembly may by law authorize the President, subject to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues." And section 16 of the same article of the Constitution provides that "In times of war or other national emergency, the National Assembly may by law authorize the President, for a limited period and subject to such restrictions as it may prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of this decision to determine whether or not, in the absence of the foregoing constitutional provisions, the President could be authorized to exercise the powers thereby vested in him. Upon the other hand, whatever doubt may have existed has been removed by the Constitution itself. The case before us does not fall under any of the exceptions hereinabove mentioned. The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.) In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf. Compaia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-179.) For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with power to determine when the Act should take effect in their respective provinces. They are the agents or delegates of the legislature in this respect. The rules governing delegation of legislative power to administrative and executive officers are applicable or are at least indicative of the rule which should be here adopted. An examination of a variety of cases on delegation of power to administrative bodies will show that the ratio decidendi is at variance but, it can be broadly asserted that the rationale revolves around the presence or absence of a standard or rule of action or the sufficiency thereof in the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative officer or board may be guided in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards in the exercise of their discretionary power to determine whether or not the Probation Act shall apply in their respective provinces? What standards are fixed by the Act? We do not find any and none has been pointed to us by the respondents. The probation Act does not, by the force of any of its provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to determine. In other words, the provincial boards of the various provinces are to determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The applicability and application of the Probation Act are entirely placed in the hands of the provincial boards. If the provincial board does not wish to have the Act applied in its province, all

that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative power to the provincial boards. "The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of the law conferring upon the Governor-General authority to adjust provincial and municipal boundaries. In the second case, this court held it lawful for the legislature to direct 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 the foreign cattle, such prohibition to be raised "if the conditions of the country make this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and livestock of the lands." It should be observed that in the case at bar we are not concerned with the simple transference of details of execution or the promulgation by executive or administrative officials of rules and regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature. It is true that laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is a mental process common to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity arising from social and economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine,

July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following language speaking of declaration of legislative power to administrative agencies: "The principle which permits the legislature to provide that the administrative agent may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken, and that, under other circumstances, different of no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done according to the terms of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to some other person or body the power to determine when the specified contingencies has arisen. But, in the case at bar, the legislature has not made the operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the provincial board. It leaves, as we have already said, the entire operation or non-operation of the law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial board need not investigate conditions or find any fact, or await the happening of any specified contingency. It is bound by no rule, limited by no principle of expendiency announced by the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its pleasure. The fact that at some future time we cannot say when the provincial boards may appropriate funds for the salaries of probation officers and thus put the law into operation in the various provinces will not save the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the happening of a certain specified contingency, or upon the ascertainment of certain facts or conditions by a person or body other than legislature itself. The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws may be suspended only by the legislature or by its authority. Thus, section 28, article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation of the laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the legislature. While it may be undoubted that the legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be made for

individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was said: 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 legal authority without consent of parliament, is illegal. In the tenth section of the same statute it is further declared and enacted, that "No dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the same should be held void and of no effect, except a dispensation be allowed of in such statute." There is an implied reservation of authority in the parliament to exercise the power here mentioned; because, according to the theory of the English Constitution, "that absolute despotic power, which must in all governments reside somewhere," is intrusted to the parliament: 1 Bl. Com., 160. The principles of our government are widely different in this particular. Here the sovereign and absolute power resides in the people; and the legislature can only exercise what is delegated to them according to the constitution. It is obvious that the exercise of the power in question would be equally oppressive to the subject, and subversive of his right to protection, "according to standing laws," whether exercised by one man or by a number of men. It cannot be supposed that the people when adopting this general principle from the English bill of rights and inserting it in our constitution, intended to bestow by implication on the general court one of the most odious and oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances; or that ant one should be subject to losses, damages, suits, or actions from which all others under like circumstances are exempted. To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act, power was given to the board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not confer that power. The court observed that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on

commercial paper, or to suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system contained a provision that "if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be enforce in their county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not, then, require the county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of previous laws, the county court is . . . empowered, to suspend this act and revive the repealed provisions of the former act. When the question is before the county court for that tribunal to determine which law shall be in force, it is urge before us that the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the abstract; for the county court of Saline county, after the act had been for several months in force in that county, did by order suspend its operation; and during that suspension the offense was committed which is the subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.) True, the legislature may enact laws for a particular locality different from those applicable to other localities and, while recognizing the force of the principle hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character which should receive different treatment in different localities placed under different circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to make 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 of general legislation like that which treats of criminals in general, and as regards the general subject of probation, discretion may not be vested in a manner so unqualified and absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the operation of the Probation Act in particular provinces but, considering that, in being vested with the authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby are given absolute discretion to determine whether or not the law should take effect or operate in their respective provinces, the provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance until the provincial boards should decide

otherwise by appropriating the necessary funds. The validity of a law is not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.) It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what may be termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of government is vested in the representatives of the people and that these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint, or by particular provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not be delegated. We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the provincial boards and is, for this reason, unconstitutional and void. 3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.) This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power, taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287;

54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.) In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative power, although perhaps this is not necessarily the result in every case. Adopting the example given by one of the counsel for the petitioners in the course of his oral argument, one province may appropriate the necessary fund to defray the salary of a probation officer, while another province may refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province but not in the latter. This means that a person otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one province while another person similarly situated in another province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation officers in their respective provinces, in which case no inequality would result for the obvious reason that probation would be in operation in each and every province by the affirmative action of appropriation by all the provincial boards. On that hypothesis, every person coming within the purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province, through its provincial board, should appropriate any amount for the salary of the probation officer which is the situation now and, also, if we accept the contention that, for the purpose of the Probation Act, the City of Manila should be considered as a province and that the municipal board of said city has not made any appropriation for the salary of the probation officer. These different situations suggested show, indeed, that while inequality may result in the application of the law and in the conferment of the benefits therein provided, inequality is not in all cases the necessary result. But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities requiring actual denial of the equal protection of the law before court should assume the task of setting aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces and

not be in force in other provinces, but one province may appropriate for the salary of the probation officer of a given year and have probation during that year and thereafter decline to make further appropriation, and have no probation is subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial uniformity. It should be observed, however, that this case concerns the right to preliminary investigations in criminal cases originally granted by General Orders No. 58. No question of legislative authority was involved and the alleged denial of the equal protection of the laws was the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have presented an information against him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that the investigation by the prosecuting attorney although not in the form had in the provinces was considered a reasonable substitute for the City of Manila, considering the peculiar conditions of the city as found and taken into account by the legislature itself. Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except those in certain counties for which counties the constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution that makes the apportionment of territorial jurisdiction. We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant to equal-protection clause of our Constitution. Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is whether or not the entire Act should be avoided. In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co.

[1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of statutes in the following language: . . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results affecting the main purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will, independently of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.) It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the respective provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination of the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of people who may be deserving of the intended beneficial result of that system. The clear policy of the law, as may be gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon the affirmative action of the different provincial boards through appropriation of the salaries for probation officers at rates not lower than those provided for provincial fiscals. Without such action on the part of the various boards, no probation officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into provinces and it needs no argument to show that if not one of the provinces and this is the actual situation now appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no probation without a probation officer. Neither can there be a probation officer without the probation system.

Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every probation officer is given, as to the person placed in probation under his care, the powers of the police officer. It is the duty of the probation officer to see that the conditions which are imposed by the court upon the probationer under his care are complied with. Among those conditions, the following are enumerated in section 3 of the Act: That the probationer (a) shall indulge in no injurious or vicious habits; (b) Shall avoid places or persons of disreputable or harmful character; (c) Shall report to the probation officer as directed by the court or probation officers; (d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere; (e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or locality; (f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense; (g) Shall comply with such orders as the court may from time to time make; and (h) Shall refrain from violating any law, statute, ordinance, or any 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 court as may seem most suitable, to bring about improvement in their conduct and condition; to report in writing to the court having jurisdiction over said probationers at least once every two months concerning their conduct and condition; to keep records of their work; make such report as are necessary for the information of the Secretary of Justice and as the latter may require; and to perform such other duties as are

consistent with the functions of the probation officer and as the court or judge may direct. The probation officers provided for in this Act may act as parole officers for any penal or reformatory institution for adults when so requested by the authorities thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional compensation." It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10 of Act which provides as follows: There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office under the direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint probation officers and the administrative personnel of the probation officer under civil service regulations from among those who possess the qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation officers and administrative personnel until such positions shall have been included in the Appropriation Act. But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis, that the probation officers referred to in section 10 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 the Chief Probation Officer. When the law provides that "the probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It never could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are assigned to him by law. That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups of provinces is, of course possible. But this would be arguing on what the law may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is. But much as has been said regarding progressive interpretation and judicial legislation we decline to amend the law. We are not permitted to read into the law matters and

provisions which are not there. Not for any purpose not even to save a statute from the doom of invalidity. Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such compensations as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers in the provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do not think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in our case there can be a system of probation in the provinces without probation officers. Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here and in other countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment of the penalty to the character of the criminal and the circumstances of his particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual convict is merely incidental. But while we believe that probation is commendable as a system and its implantation into the Philippines should be welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental law. In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our attention, and others we have been able to reach in the short time at our command for the study and deliberation of this case. In the examination of the cases and in then analysis of the legal principles involved we have inclined to adopt the line of action which in our opinion, is supported better reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain adjudicated cases brought to our attention, except where the point or principle is settled directly or by clear implication by the more

authoritative pronouncements of the Supreme Court of the United States. This line of approach is justified because: (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 s state of the American Union of the District of Columbia with reference to the Federal Government of the United States is not the situation of the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871), (c) The distinct federal and the state judicial organizations of the United States do not embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317); (d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions and environment. Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any pronouncement regarding costs. So ordered. Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur. Villa-real and Abad Santos, JJ., concur in the result.

G.R. No. 74457 March 20, 1987 RESTITUTO YNOT, petitioner, vs. INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents. Ramon A. Gonzales for petitioner.

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A. The said executive order reads in full as follows: WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age; WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against inter-provincial movement of carabaos by transporting carabeef instead; and WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby promulgate the following: SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos. SECTION 2. This Executive Order shall take effect immediately. Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty. (SGD.) FERDINAND E. MARCOS Preside nt Republic of the Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2 The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has now come before us in this petition for review on certiorari. The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it is imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by due process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There is also a challenge to the improper exercise of the legislative power by the former President under Amendment No. 6 of the 1973 Constitution. 4 While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this Court did not, as contended by the Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter. This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower courts in, among others, all cases involving the constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made in the first instance by these lower courts. And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound or excise the affliction. Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule instead of merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was supposed to have been made by the President "in his judgment, " a phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question of due process. It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10 The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require. Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process and in so doing sums it all up as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12 When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power. The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword. This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present danger. The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is born and follows him still after he is dead from the womb to beyond the tomb in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is

not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the greater number. It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect and preserve them. A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows: To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. ... From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected. In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also reasonably

necessary for the purpose sought to be achieved and not unduly oppressive upon individuals, again following the above-cited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their improvident depletion. But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on the slaughter of the carabaos but on their movement, providing that "no carabao regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of the prohibition escapes us. The reasonable connection between the means employed and the purpose sought to be achieved by the questioned measure is missing We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat. Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the government. In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of elementary fair play. It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20 In the exceptional cases

accepted, however. there is a justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem sought to be corrected and the urgency of the need to correct it. In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not by the police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only after trial and conviction of the accused. We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the seized property shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers. To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional. We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals

itself did not feel they had the competence, for all their superior authority, to question the order we now annul. The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his property under the challenged measure would have become a fait accompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights. The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them. WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs. SO ORDERED. December 8, 1914 G.R. No. L-9876 THE UNITED STATES, plaintiff-appellee, vs. ADRIANO PANLILIO, defendant-appellant. Pedro Abad Santos for appellant. Office of the Solicitor General Corpus for appellee. MORELAND, J.: This is an appeal from a judgment of the Court of First Instance of the Province of Pampanga convicting the accused of a violation of the law relating to the quarantining of animals suffering from dangerous communicable or contagious diseases and sentencing him to pay a fine of P40, with subsidiary imprisonment in case of insolvency, and to pay the costs of the trial. The information charges: That on or about the 22nd day of February, 1913, all of the carabaos belonging to the above-named accused having been exposed to the dangerous and contagious disease known as rinderpest, were, in accordance with an order of duly-authorized agent of the Director of Agriculture, duly quarantined in a corral in the barrio of Masamat, municipality of Mexico, Province of Pampanga, P. I.; that, on said place, the said accused, Adriano Panlilio, illegally and voluntarily and without being authorized so to do, and while the quarantine against said carabaos was still in force, permitted and ordered said carabaos to be taken from the corral in

which they were then quarantined and conducted from one place to another; that by virtue of said orders of the accused, his servants and agents took the said carabaos from the said corral and drove them from one place to another for the purpose of working them. The defendant demurred to this information on the ground that the acts complained of did not constitute a crime. The demurrer was overruled and the defendant duly excepted and pleaded not guilty. From the evidence introduced by the prosecution on the trial of the cause it appears that the defendant was notified in writing on February 22, 1913, by a duly authorized agent of the Director of agriculture, that all of his carabaos in the barrio of Masamat, municipality of Mexico, Pampanga Province, had been exposed to the disease commonly known as rinderpest, and that said carabaos were accordingly declared under quarantine, and were ordered kept in a corral designated by an agent of the Bureau of Agriculture and were to remain there until released by further order of the Director of Agriculture. It further appears from the testimony of the witnesses for the prosecution that the defendant fully understood that, according to the orders of the Bureau of Agriculture, he was not to remove the animals, or to permit anyone else to remove them, from the quarantine in which they had been placed. In spite, however, of all this, the carabaos were taken from the corral by the commands of the accused and driven from place to place on his hacienda, and were used as work animals thereon in the same manner as if they had not been quarantined. The contention of the accused is that the facts alleged in the information and proved on the trial do not constitute a violation of Act No. 1760 or any portion thereof. We are forced to agree with this contention. The original information against the accused charged a violation of section 6 of Act No. 1760 committed by the accused in that he ordered and permitted his carabaos, which, at the time, were in quarantine, to be taken from quarantine and moved from one place to another on his hacienda. An amended information was filed. It failed, however, to specify that section of Act No. 1760 alleged to have been violated, evidently leaving that to be ascertained by the court on the trial. The only sections of Act No. 1760, which prohibit acts and pronounce them unlawful are 3, 4 and 5. This case does not fall within any of them. Section 3 provides, in effect, that it shall be unlawful for any person, firm, or corporation knowingly to ship or otherwise bring into the Philippine Islands any animal suffering from, infected with, or dead of any dangerous communicable disease, or any of the effects pertaining to such animal which are liable to introduce such disease into the Philippine Islands. Section 4 declares, substantially, that it shall be unlawful for any reason, firm, or corporation knowingly to ship, drive or otherwise take or transport from one island, province, municipality, township, or settlement to another any domestic animal suffering from any dangerous communicable diseased or to expose such animal either alive or dead on any public road or highway where it may come in contact with other domestic animals. Section 5 provides that whenever the Secretary of the Interior shall declare that a dangerous communicable animal disease prevails in any island, province, municipality, township, or settlement and that there is danger of

spreading such disease by shipping, driving or otherwise transporting or taking out of such island, province, municipality, township, or settlement any class of domestic animal, it shall be unlawful for any person, firm or corporation to ship, drive or otherwise remove the kind of animals so specified from such locality except when accompanied by a certificate issued by authority of the Director of Agriculture stating the number and the kind of animals to be shipped, driven, taken or transported, their destination, manner in which they are authorized to be shipped, driven, taken, or transported, and their brands and distinguishing marks. A simple reading of these sections demonstrates clearly that the case at bar does not fall within any of them. There is no question here of importation and there is no charge or proof that the animals in question were suffering from a dangerous communicable disease or that the Secretary of the Interior had made the declaration provided for in section 5 or that the accused had driven or taken said animals from one island, province, municipality, township or settlement to another. It was alleged had been exposed to a dangerous communicable disease and that they had been placed in a corral in quarantine on the premises of the accused and that he, in violation of the quarantine, had taken them from the corral and worked them upon the lands adjoining. They had not been in highway nor moved from one municipality or settlement to another. They were left upon defendants hacienda, where they were quarantined, and there worked by the servants of the accused. The Solicitor-General in his brief in this court admits that the sections referred to are not applicable to the case at bar and also admits that section 7 of said Act is not applicable. This section provides: Whenever the Director of Agriculture shall order any animal placed in quarantine in accordance with the provisions of this Act, the owner of such animal, or his agent, shall deliver it at the place designated for the quarantine and shall provide it with proper food, water, and attendance. Should the owner or his agent fail to comply with this requirement the Director of Agriculture may furnish supplies and attendance needed, and the reasonable cost of such supplies and attendance shall be collectible from the owner or his agent. We are in accord with the opinion expressed by the Solicitor-General with respect to this section, as we are with his opinion as to sections 3, 4, and 5. the law nowhere makes it a penal offense to refuse to comply with the provisions of section 7, nor is the section itself so phrased as to warrant the conclusion that it was intended to be a penal section. The section provides the means by which the refusal of the owner to comply therewith shall be overcome and the punishment, if we may call it punishment, which he shall receive by reason of that refusal. It has none of the aspects of a penal provision or the form or substance of such provision. It does not prohibit any act. It does not compel an act nor does it really punish or impose a criminal penalty. The other sections of the law under which punishments may be inflicted are so phrased as to make the prohibited act unlawful, and section 8 provides the punishment for any act declared unlawful by the law. The Solicitor-General suggests, but does not argue, that section 6 is applicable to the case at bar. Section 6 simply authorizes the Director of Agriculture to do certain things, among them, paragraph (c) to require that animals which are suffering from dangerous communicable diseases or have been exposed thereto be placed in quarantine at such place and for such time as may be deemed by him necessary to prevent the spread of the disease. Nowhere in the law, however, is the violation of the orders of the Bureau of Agriculture prohibited or made unlawful, nor is there

provided any punishment for a violation of such orders. Section 8 provides that any person violating any of the provisions of this Act shall, upon conviction, be punished by a fine of not more than one thousand pesos, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court, for each offense. A violation of the orders of the Bureau of Agriculture, as authorized by paragraph (c), is not a violation of the provision of the Act. The orders of the Bureau of Agriculture, while they may possibly be said to have the force of law, are statutes and particularly not penal statutes, and a violation of such orders is not a penal offense unless the statute itself somewhere makes a violation thereof unlawful and penalizes it. Nowhere in Act No. 1760 is a violation of the orders of the Bureau of Agriculture made a penal offense, nor is such violation punished in any way therein. Finally, it is contended by the Government that if the offense stated in the information and proved upon the trial does not constitute a violation of any of the provisions of Act No. 1760, it does constitute a violation of article 581, paragraph 2, of the Penal Code. It provides: A fine of not less than fifteen and not more than seventy pesetas and censure shall be imposed upon: . . . 2. Any person who shall violate the regulations, ordinances, or proclamations issued with reference to any epidemic disease among animals, the extermination of locusts, or any other similar plague. It alleged in the information and was proved on the trial that the Bureau of agriculture had ordered a quarantine of the carabaos at the time and place mentioned; that the quarantine had been executed and completed and the animals actually segregated and confined; that the accused, in violation of such quarantine and of the orders of the Bureau of Agriculture, duly promulgated, broke the quarantine, removed the animals and used them in the ordinary work of his plantation. We consider these acts a plain violation of the article of the Penal Code as above quoted. The fact that the information in its preamble charged a violation of Act No. 1760 does not prevent us from finding the accused guilty of a violation of an article of the Penal Code. The complaint opens as follows: The undersigned accuses Adriano Panlilio of a violation of Act No. 1760, committed as follows: Then follows the body of the information already quoted in this opinion. We would not permit an accused to be convicted under one Act when he is charged with the violation of another, if the change from one statute to another involved a change of the theory of the trial or required of the defendant a different defense or surprised him in any other way. The allegations required under Act No. 1760 include those required under article 581. The accused could have defended himself in no different manner if he had been expressly charged with a violation of article 581. In the case of United States vs. Paua (6 Phil. Rep., 740), the information stating the facts upon which the charge was founded terminated with his expression: In violation of section 315 of Act No. 355 of the Philippine Commission, in effect on the 6th of February, 1902. In the resolution of this case the Supreme Court found that the facts set forth in the information and proved on the trial did not constitute a violation of section 315 of Act No. 355 as alleged in the information, but did constitute a violation of article 387 in connection with article 383 of the Penal Code, and accordingly convicted the accused under those articles and sentenced him to the corresponding penalty.

In that case the court said: The foregoing facts, duly established as they were by the testimony of credible witnesses who heard and saw everything that occurred, show beyond peradventure of doubt that the crime of attempted bribery, as defined in article 387, in connection with article 383 of the Penal Code, has been committed, it being immaterial whether it is alleged in the complaint that section 315 of Act No. 355 of the Philippine Commission was violated by the defendant, as the same recites facts and circumstances sufficient to constitute the crime of bribery as defined and punished in the aforesaid articles of the Penal Code. (U. S. vs. Lim San, 17 Phil. Rep., 273; U.S. vs. Jeffrey, 15 Phil. Rep., 391; U. S. vs. Guzman, 25 Phil. Rep., 22.) The accused is accordingly convicted of a violation of article 581, paragraph 2, of the Penal Code, and is sentenced to pay a fine of seventy pesetas (P14) and censure, with subsidiary imprisonment in case of insolvency, and the costs of this appeal. So ordered. Arellano, C.J., Torres, Carson and Araullo, JJ., concur. Johnson, J., dissents.