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Republic
of
the
Philippines
SUPREME
COURT
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.
EN BANC
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.
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
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.
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
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.
petition
for
leave
to
withdraw
his
appearance
as
amicus
curiae
on
the
ground
that
the
motion
for
leave
to
intervene
as
amici
curiae
was
circulated
at
a
banquet
given
by
counsel
for
Mariano
Cu
Unjieng
on
the
evening
of
July
30,
1937,
and
that
he
signed
the
same
"without
mature
deliberation
and
purely
as
a
matter
of
courtesy
to
the
person
who
invited
me
(him)."
On
August
6,
1937,
the
Fiscal
of
the
City
of
Manila
filed
a
motion
with
the
trial
court
for
the
issuance
of
an
order
of
execution
of
the
judgment
of
this
court
in
said
case
and
forthwith
to
commit
the
herein
respondent
Mariano
Cu
Unjieng
to
jail
in
obedience
to
said
judgment.
On
August
7,
1937,
the
private
prosecution
filed
its
opposition
to
the
motion
for
leave
to
intervene
as
amici
curiaeaforementioned,
asking
that
a
date
be
set
for
a
hearing
of
the
same
and
that,
at
all
events,
said
motion
should
be
denied
with
respect
to
certain
attorneys
signing
the
same
who
were
members
of
the
legal
staff
of
the
several
counsel
for
Mariano
Cu
Unjieng.
On
August
10,
1937,
herein
respondent
Judge
Jose
O.
Vera
issued
an
order
requiring
all
parties
including
the
movants
for
intervention
as
amici
curiae
to
appear
before
the
court
on
August
14,
1937.
On
the
last-mentioned
date,
the
Fiscal
of
the
City
of
Manila
moved
for
the
hearing
of
his
motion
for
execution
of
judgment
in
preference
to
the
motion
for
leave
to
intervene
as
amici
curiae
but,
upon
objection
of
counsel
for
Mariano
Cu
Unjieng,
he
moved
for
the
postponement
of
the
hearing
of
both
motions.
The
respondent
judge
thereupon
set
the
hearing
of
the
motion
for
execution
on
August
21,
1937,
but
proceeded
to
consider
the
motion
for
leave
to
intervene
as
amici
curiae
as
in
order.
Evidence
as
to
the
circumstances
under
which
said
motion
for
leave
to
intervene
as
amici
curiae
was
signed
and
submitted
to
court
was
to
have
been
heard
on
August
19,
1937.
But
at
this
juncture,
herein
petitioners
came
to
this
court
on
extraordinary
legal
process
to
put
an
end
to
what
they
alleged
was
an
interminable
proceeding
in
the
Court
of
First
Instance
of
Manila
which
fostered
"the
campaign
of
the
defendant
Mariano
Cu
Unjieng
for
delay
in
the
execution
of
the
sentence
imposed
by
this
Honorable
Court
on
him,
exposing
the
courts
to
criticism
and
ridicule
because
of
the
apparent
inability
of
the
judicial
machinery
to
make
effective
a
final
judgment
of
this
court
imposed
on
the
defendant
Mariano
Cu
Unjieng."
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
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:
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.
(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.
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.
(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.
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
(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.
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.
(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.
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.
(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
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.
(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.
(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.
(9)
That
under
the
supposition
that
the
order
of
the
trial
court
denying
probation
is
not
appealable,
it
is
incumbent
upon
the
accused
to
file
an
action
for
the
issuance
of
the
writ
ofcertiorari
with
mandamus,
it
appearing
that
the
trial
court,
although
it
believed
that
the
accused
was
entitled
to
probation,
nevertheless
denied
probation
for
fear
of
criticism
because
the
accused
is
a
rich
man;
and
that,
before
a
petition
for
certiorari
grounded
on
an
irregular
exercise
of
jurisdiction
by
the
trial
court
could
lie,
it
is
incumbent
upon
the
petitioner
to
file
a
motion
for
reconsideration
specifying
the
error
committed
so
that
the
trial
court
could
have
an
opportunity
to
correct
or
cure
the
same.
(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.
(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.
(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."
(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).
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.
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.
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 onHabeas 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 andcertiorari.(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,
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
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:
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.)
By the Code of Civil Procedure of the Philippine Islands, section 516,
the Philippine supreme court is granted concurrent jurisdiction in
prohibition with courts of first instance over inferior tribunals or
persons, and original jurisdiction over courts of first instance, when
such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the
validity of the criminal statute must usually be raised by a defendant in
the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in
this case where a new act seriously affected numerous persons and
extensive property rights, and was likely to cause a multiplicity of
actions, the Supreme Court exercised its discretion to bring the issue to
the act's validity promptly before it and decide in the interest of the
orderly administration of justice. The court relied by analogy upon the
cases of Ex 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.
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
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
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.
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
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
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:
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.
. . . 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).
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.
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:
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.)
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
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.
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.
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.
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.
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
10
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.
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?
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.
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
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
11
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?
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 . . .
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.)
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.
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:
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,
12
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.
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.)
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
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
13
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."
[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
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
14
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.)
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.)
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:
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 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 parteGarland, 71 U. S., 4 Wall., 333; 18
Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519;
Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The 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.)
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
parteWells,
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
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
15
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.:
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.)
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.
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.)
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:
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 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
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
16
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.)
(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
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.
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.)
17
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.)
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
inMunicipality
of
Cardona
vs.
Municipality
of
Binangonan
([1917],
36
Phil.,
547);
Rubi
vs.
Provincial
Board
of
Mindoro
([1919],39
Phil.,
660)
and
Cruz
vs.
Youngberg
([1931],
56
Phil.,
234).
In
the
first
of
these
cases,
this
court
sustained
the
validity
of
the
law
conferring
upon
the
Governor-General
authority
to
adjust
provincial
and
municipal
boundaries.
In
the
second
case,
this
court
held
it
lawful
for
the
legislature
to
direct
non-Christian
inhabitants
to
take
up
their
habitation
on
unoccupied
lands
to
be
selected
by
the
provincial
governor
and
approved
by
the
provincial
board.
In
the
third
case,
it
was
held
proper
for
the
legislature
to
vest
in
the
Governor-General
authority
to
suspend
or
not,
at
his
discretion,
the
prohibition
of
the
importation
of
the
foreign
cattle,
such
prohibition
to
be
raised
"if
the
conditions
of
the
country
make
this
advisable
or
if
deceased
among
foreign
cattle
has
ceased
to
be
a
menace
to
the
agriculture
and
livestock
of
the
lands."
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
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
18
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
19
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.
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.)
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.
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,
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.,
20
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.)
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.)
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.
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
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,
21
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.
22
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:
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.
. . . 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.)
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;
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
(f) Shall make reparation or restitution to the aggrieved parties for
actual damages or losses caused by his offense;
23
(g)
Shall
comply
with
such
orders
as
the
court
may
from
time
to
time
make;
and
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.
(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."
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
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
24
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.
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:
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.
(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);
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.
(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.
25
Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.
26
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