Vera egswre

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G.R. No. L-45685 November 16, 1937THE PEOPLE OF THE PHILIPPINE ISLANDS andHONGKONG & SHANGHAI BANKING CORPORATION, petitioners, vs.JOSE O. VERA, Judge . of the

Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents.

This is an original action instituted in this court on August 19, 1937, for the issuance of the writofcertiorariand of prohibition to the Court of First Instance of Manila so that this court may review theactuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of thePhilippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendantMariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibit the

said Court of First Instance from taking any further action or entertaining further the aforementionedapplication for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed toprison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No.41200). 1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai BankingCorporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano CuUnjieng is one of the defendants, in the criminal case entitled "The People of the Philippine Islands vs.Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No.41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch ofthe Court of First Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng forprobation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila onOctober 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the caseas private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both inthe length of time spent by the court as well as in the volume in the testimony and the bulk of the exhibitspresented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of convictionsentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and twomonths of prision correccional to eight years of prision mayor, to pay the costs and with reservation of civiaction to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, onMarch 26, 1935, modified the sentence to an indeterminate penalty of from five years and six monthsofprision correccional to seven years, six months and twenty-seven days ofprision mayor, but affirmedthe judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration and foursuccessive motions for new trial which were denied on December 17, 1935, and final judgment wasaccordingly 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 forcertiorari inNovember, 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 thereafterremanded the case to the court of origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the herein respondentMariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act No4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in hispetition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminalrecord and that he would observe good conduct in the future. The Court of First Instance of Manila, JudgePedro Tuason presiding, referred the application for probation of the Insular Probation Office whichrecommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventhbranch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation tothe 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 2of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), Article III of theConstitution guaranteeing equal protection of the laws for the reason that its applicability is not uniformthroughout the Islands and because section 11 of the said Act endows the provincial boards with the powerto make said law effective or otherwise in their respective or otherwise in their respective provinces. Theprivate prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the allegedunconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of

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several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the privateprosecution except with respect to the questions raised concerning the constitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that"las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos loshechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that the hereinrespondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he stands convictedby 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 historiasocial que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor dela misma, una parte de la opinion publica, atizada por los recelos y las suspicacias, podrialevantarse indignada contra un sistema de probacion que permite atisbar en los procedimientosordinarios de una causa criminal perturbando la quietud y la eficacia de las decisiones ya recaidasal traer a la superficie conclusiones enteramente differentes, en menoscabo del interes publico quedemanda 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 theresolution denying probation and a notice of intention to file a motion for reconsideration. An alternativemotion for reconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented by anadditional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set forhearing 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 whosesignature appears in the aforesaid motion subsequently filed a petition for leave to withdraw hisappearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae wascirculated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and thathe signed the same "without mature deliberation and purely as a matter of courtesy to the person whoinvited me (him)."

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

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

as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events,said motion should be denied with respect to certain attorneys signing the same who were members of thelegal 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 toappear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manilamoved for the hearing of his motion for execution of judgment in preference to the motion for leave tointervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for thepostponement of the hearing of both motions. The respondent judge thereupon set the hearing of themotion for execution on August 21, 1937, but proceeded to consider the motion for leave to interveneas amici curiae as in order. Evidence as to the circumstances under which said motion for leave tointervene 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 towhat 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 bythis Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent inabilityof the judicial machinery to make effective a final judgment of this court imposed on the defendantMariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspended upon the issuance of atemporary restraining order by this court on August 21, 1937.



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To support their petition for the issuance of the extraordinary writs ofcertiorari and prohibitionherein 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 probationfor the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to applyonly to the provinces of the Philippines; it nowhere states that it is to be made applicable to

chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in theabsence of a special provision, the term "province" may be construed to include the City ofManila for the purpose of giving effect to laws of general application, it is also true that ActNo. 4221 is not a law of general application because it is made to apply only to thoseprovinces in which the respective provincial boards shall have provided for the salary of aprobation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would notbe applicable to it because it has provided for the salary of a probation officer as required bysection 11 thereof; it being immaterial that there is an Insular Probation Officer willing to actfor 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 forprobation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excessthereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano CuUnjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng'sapplication for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to thegranting 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 orchange the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime forwhich he was convicted by final judgment of this court, which finding is not only presumptuous but withoutfoundation in fact and in law, and is furthermore in contempt of this court and a violation of therespondent's oath of office as ad interimjudge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which became imperativewhen he issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail.

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

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and ShanghaiBanking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a systemof probation for persons eighteen years of age or over who are convicted of crime, is unconstitutionalbecause it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippines



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guaranteeing equal protection of the laws because it confers upon the provincial board of its province theabsolute discretion to make said law operative or otherwise in their respective provinces, because itconstitutes an unlawful and improper delegation to the provincial boards of the several provinces of thelegislative 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 toenlarge the powers of the Court of First Instance of different provinces without uniformity. In anothersupplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of thepetitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by otherpetitioner 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 isan encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. OnOctober 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 not onlyencroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation oflegislative 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 PhilippineIslands, and by counsel for the petitioner, the Hongkong and Shanghai Banking Corporation, one sustainingthe power of the state to impugn the validity of its own laws and the other contending that Act No. 4221constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandumwas filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 isunconstitutional because it denies the equal protection of the laws and constitutes an unlawful delegationof legislative power and, further, that the whole Act is void: that the Commonwealth is not estopped fromquestioning the validity of its laws; that the private prosecution may intervene in probation proceedingsand may attack the probation law as unconstitutional; and that this court may pass upon the constitutionaquestion in prohibition proceedings.

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

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the issuance ofthe writ ofcertiorari or of prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the petitioners is

the very same remedy prayed for by them before the trial court and was still pendingresolution before the trial court when the present petition was filed with this court.

(3) That the petitioners having themselves raised the question as to the execution ofjudgment before the trial court, said trial court has acquired exclusive jurisdiction to resolvethe 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 ofFirst Instance to decide the question as to whether or not the execution will lie, this courtnevertheless cannot exercise said jurisdiction while the Court of First Instance has assumed

jurisdiction over the same upon motion of herein petitioners themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to deprive the triacourt of its jurisdiction over the case and elevate the proceedings to this court, should notbe tolerated because it impairs the authority and dignity of the trial court which court whilesitting in the probation cases is "a court of limited jurisdiction but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the questionsubmitted to and pending resolution by the trial court, the present action would not liebecause the resolution of the trial court denying probation is appealable; for although theProbation Law does not specifically provide that an applicant for probation may appeal froma resolution of the Court of First Instance denying probation, still it is a general rule in this



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jurisdiction that a final order, resolution or decision of an inferior court is appealable to thesuperior court.

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

(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of thetrial court denying probation is not final and unappealable when he presented his answer tothe motion for reconsideration and agreed to the postponement of the hearing of the saidmotion.

(9) That under the supposition that the order of the trial court denying probation is notappealable, it is incumbent upon the accused to file an action for the issuance of the writofcertiorari with mandamus, it appearing that the trial court, although it believed that theaccused was entitled to probation, nevertheless denied probation for fear of criticismbecause the accused is a rich man; and that, before a petition for certiorari grounded on anirregular exercise of jurisdiction by the trial court could lie, it is incumbent upon thepetitioner to file a motion for reconsideration specifying the error committed so that the triacourt could have an opportunity to correct or cure the same.

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

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

In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No.4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute anundue 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 onthe same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free fromconstitutional objections and contend, in addition, that the private prosecution may not intervene inprobation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and theSolicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot beattacked for the first time before this court; that probation in unavailable; and that, in any event, section11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondentMariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of thiscourt and filed anew on November 5, 1937. This memorandum elaborates on some of the pointsraised by the respondents and refutes those brought up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspects of the present case, wenoted that the court below, in passing upon the merits of the application of the respondent Mariano CuUnjieng and in denying said application assumed the task not only of considering the merits of theapplication, but of passing upon the culpability of the applicant, notwithstanding the final pronouncementof guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation casemay look into the circumstances attending the commission of the offense, this does not authorize it toreverse the findings and conclusive of this court, either directly or indirectly, especially wherefrom its ownadmission reliance was merely had on the printed briefs, averments, and pleadings of the parties. Asalready observed by this court in Shioji vs. Harvey([1922], 43 Phil., 333, 337), and reiterated in



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subsequent cases, "if each and every Court of First Instance could enjoy the privilege of overrulingdecisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." Abecoming modesty of inferior courts demands conscious realization of the position that they occupy in theinterrelation and operation of the intergrated judicial system of the nation.

After threshing carefully the multifarious issues raised by both counsel for the petitioners and therespondents, this court prefers to cut the Gordian knot and take up at once the two fundamental questionspresented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properly raised inthese proceedings; and (2) in the affirmative, whether or not said Act is constitutional. Considerations of

these issues will involve a discussion of certain incidental questions raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles isnecessary. It is a well-settled rule that the constitutionality of an act of the legislature will not bedetermined by the courts unless that question is properly raised and presented inappropriate cases and isnecessary to a determination of the case; i.e., the issue of constitutionality must be the very lismota 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 ordinaryactions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where theremedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus, in CuUnjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the constitutionality of a

statute may be raised by the petitioner inmandamus proceedings (see, also, 12 C. J., p. 783); andin Government of the Philippine Islands vs. Springer([1927], 50 Phil., 259 [affirmed in Springer vsGovernment of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an actof the legislature unconstitutional in an action ofquo warranto brought in the name of the Government ofthe Philippines. It has also been held that the constitutionality of a statute may be questioned in habeascorpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there areauthorities 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 preliminaryinjunction where the determination of the constitutional question is necessary to a decision of the case.(12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad[1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905],28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). Thecase ofYu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one,

an original action forcertiorari and prohibition. The constitutionality of Act No. 2972, popularly known asthe Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue wasnot met squarely by the respondent in a demurrer. A point was raised "relating to the propriety of theconstitutional question being decided in original proceedings in prohibition." This court decided to take upthe constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutional. Thecase was elevated on writ ofcertiorari 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 thequestion of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supremecourt is granted concurrent jurisdiction in prohibition with courts of first instance over inferiortribunals or persons, and original jurisdiction over courts of first instance, when such courts areexercising 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 triacourt and be carried regularly in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vsDel Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous personsand extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Courtexercised its discretion to bring the issue to the act's validity promptly before it and decide in theinterest of the orderly administration of justice. The court relied by analogy upon the cases ofEx

parteYoung (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann.Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7;Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise bydemurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask



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a decision on the merits. In view of the broad powers in prohibition granted to that court under theIsland Code, we acquiesce in the desire of the parties.

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdictionand 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 generalrule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferiorcourt has jurisdiction independent of the statute the constitutionality of which is questioned, because insuch cases the interior court having jurisdiction may itself determine the constitutionality of the statute,

and its decision may be subject to review, and consequently the complainant in such cases ordinarily hasadequate remedy by appeal without resort to the writ of prohibition. But where the inferior court ortribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by thewrit of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; Inre Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vsWoolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields[1837], 5 Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No.4221 which prescribes in detailed manner the procedure for granting probation to accused persons aftertheir conviction has become final and before they have served their sentence. It is true that at commonlaw 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 vsStickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 NY., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case ofEx 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 ofthe court was limited to temporary suspension, and brushed aside the contention as to inherent judicialpower saying, through Chief Justice White:

Indisputably under our constitutional system the right to try offenses against the criminalaws and upon conviction to impose the punishment provided by law is judicial, and it is equally tobe conceded that, in exerting the powers vested in them on such subject, courts inherently possessample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert theirauthority. 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 topermanently refuse to do so. And the effect of the proposition urged upon the distribution of powersmade by the Constitution will become apparent when it is observed that indisputable also is it thatthe authority to define and fix the punishment for crime is legislative and includes the right inadvance to bring within judicial discretion, for the purpose of executing the statute, elements ofconsideration which would be otherwise beyond the scope of judicial authority, and that the right torelieve from the punishment, fixed by law and ascertained according to the methods by it providedbelongs to the executive department.

Justice Carson, in his illuminating concurring opinion in the case ofDirector of Prisons vs. Judge ofFirst Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that thepower to suspend the execution of sentences pronounced in criminal cases is not inherent in the judicialfunction. "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 oflimited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of thePhilippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on application forprohibition where the question has not been properly brought to the attention of the court by objection ofsome 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 beensquarely presented not only before this court by the petitioners but also before the trial court by the



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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 whoserights are affected by the statute, may not raise said question. The respondent judge cited Cooley onConstitutional 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 considerany attack made on the constitutionality of a statute by one who has no interest in defeating it because hisrights 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 alegislative enactment void is one which the judge, conscious of the fallibility of the human judgment, wilshrink from exercising in any case where he can conscientiously and with due regard to duty and officiaoath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on theassumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that theconstitutional question was raised before it, it refused to consider the question solely because it was notraised by a proper party. Respondents herein reiterates this view. The argument is advanced that theprivate prosecution has no personality to appear in the hearing of the application for probation ofdefendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, andhence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule,only those who are parties to a suit may question the constitutionality of a statute involved in a judicialdecision, it has been held that since the decree pronounced by a court without jurisdiction is void, wherethe jurisdiction of the court depends on the validity of the statute in question, the issue of theconstitutionality will be considered on its being brought to the attention of the court by persons interestedin the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that theissue was not properly raised in the court below by the proper party, it does not follow that the issue maynot be here raised in an original action ofcertiorari and prohibitions. It is true that, as a general rule, thequestion of constitutionality must be raised at the earliest opportunity, so that if not raised by thepleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will notconsidered 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 ofsounds discretion, may determine the time when a question affecting the constitutionality of a statuteshould be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is avery sharp conflict of authorities, it is said that the question may be raised for the first time at any stage ofthe proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been heldthat it is the duty of a court to pass on the constitutional question, though raised for the first time onappeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe'sAdm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis CordageCo. [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 atany 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 beforethis 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, representedby the private prosecution, is not the proper party to raise the constitutional question here a point wedo not now have to decide we are of the opinion that the People of the Philippines, represented by theSolicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. Theunchallenged rule is that the person who impugns the validity of a statute must have a personal andsubstantial interest in the case such that he has sustained, or will sustained, direct injury as a result of itsenforcement. It goes without saying that if Act No. 4221 really violates the constitution, the People of thePhilippines, in whose name the present action is brought, has a substantial interest in having it set aside.Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound

inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rulethat 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], 277U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an actioninstituted 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 quowarranto proceedings to test the right of the respondents to renew a mining corporation, alleging that thestatute under which the respondents base their right was unconstitutional because it impaired theobligation of contracts. The capacity of the chief law officer of the state to question the constitutionality ofthe statute was though, as a general rule, only those who are parties to a suit may question theconstitutionality of a statute involved in a judicial decision, it has been held that since the decree



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pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on thevalidity of the statute in question, the issue of constitutionality will be considered on its being brought tothe 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 theproper party, it does not follow that the issue may not be here raised in an original action of certiorari andprohibition. It is true that, as a general rule, the question of constitutionality must be raised at the earliestopportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the trial, and if notraised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-GibsonLumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits ofexceptions. Courts, in the exercise of sound discretion, may determine the time when a question affectingthe constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, incriminal cases, although there is a very sharp conflict of authorities, it is said that the question may beraised for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutionaquestion, though raised for first time on appeal, if it appears that a determination of the question isnecessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124S. 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 questionwill 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 theconstitutional question raised for the first time before this court in these proceedings, we turn again andpoint with emphasis to the case ofYu Cong Eng. vs. Trinidad, supra. And on the hypothesis that theHongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the properparty to raise the constitutional question here a point we do not now have to decide we are of theopinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City ofManila, is such a proper party in the present proceedings. The unchallenged rule is that the person whoimpugns the validity of a statute must have a personal and substantial interest in the case such that hehas sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if ActNo. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action isbrought, has a substantial interest in having it set aside. Of greater import than the damage caused by theillegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by theenforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity ofits own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed inSpringer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this courtdeclared an act of the legislature unconstitutional in an action instituted in behalf of the Government ofthe 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 rightof the respondents to renew a mining corporation, alleging that the statute under which the respondentsbase their right was unconstitutional because it impaired the obligation of contracts. The capacity of thechief law officer of the state to question the constitutionality of the statute was itself questioned. Said theSupreme Court of Michigan, through Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a lawenacted by their representatives; that to an accusation by the people of Michigan of usurpationtheir government, a statute enacted by the people of Michigan is an adequate answer. The lastproposition is true, but, if the statute relied on in justification is unconstitutional, it is statute only inform, and lacks the force of law, and is of no more saving effect to justify action under it than if ithad never been enacted. The constitution is the supreme law, and to its behests the courts, thelegislature, and the people must bow . . . The legislature and the respondents are not the onlyparties in interest upon such constitutional questions. As was remarked by Mr. Justice Story, inspeaking of an acquiescence by a party affected by an unconstitutional act of the legislature: "Thepeople have a deep and vested interest in maintaining all the constitutional limitations upon theexercise 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) wasbrought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. Indisposing of the question whether or not the state may bring the action, the Supreme Court of Kansas said



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. . . the state is a proper party indeed, the proper party to bring this action. The state isalways 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 specificinjury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80Kan., 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 tohave the matter determined, either by quo warranto to challenge its validity (State vs. Johnson, 61Kan., 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 questionableprovisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122).

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

It is contended by counsel for Herbert Watkins that a district attorney, being charged with the

duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of theargument 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 NewOrleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La.Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney to pleadthat a statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce. InState ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not, merelybecause he believed a certain statute to be unconstitutional forbid the district attorney to file a bilof 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 fordecision, and unless it must be decided in order to determine the right of a party litigant. State exrel. Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom astatute 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 fromresponsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for theproposition merely that executive officers, e.g., the state auditor and state treasurer, should notdecline to perform ministerial duties imposed upon them by a statute, on the ground that theybelieve the statute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, tosupport the Constitution of the state. If, in the performance of his duty he finds two statutes inconflict with each other, or one which repeals another, and if, in his judgment, one of the twostatutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he iscompelled to submit to the court, by way of a plea, that one of the statutes is unconstitutional. If itwere not so, the power of the Legislature would be free from constitutional limitations in theenactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that thestate may impugn the validity of its laws. They have not cited any authority running clearly in the oppositedirection. In fact, they appear to have proceeded on the assumption that the rule as stated is sound butthat it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of thePeople of the Philippines, one of the petitioners herein, the principal reasons being that the validity beforethis court, that the City Fiscal is estopped from attacking the validity of the Act and, not authorizedchallenge the validity of the Act in its application outside said city. (Additional memorandum ofrespondents, October 23, 1937, pp. 8,. 10, 17 and 23.)



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The mere fact that the Probation Act has been repeatedly relied upon the past and all that time hasnot been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedlyregarded by him as constitutional, is no reason for considering the People of the Philippines estopped fromnor assailing its validity. For courts will pass upon a constitutional questions only when presented before itin bona fide cases for determination, and the fact that the question has not been raised before is not avalid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying uponthe statute and treating it as valid until it is held void by the courts in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221 is

necessary to the resolution of the instant case. For, ". . . while the court will meet the question withfirmness, 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 isessential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism242 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 isfounded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vsNiagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is nodoubt that the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now beingassailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that theProbation Act is a new addition to our statute books and its validity has never before been passed upon bythe courts; that may persons accused and convicted of crime in the City of Manila have applied forprobation; that some of them are already on probation; that more people will likely take advantage of theProbation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period ofabout 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 ofsuits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp.77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs.Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs.Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us

We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are affectedby these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in theinterest of the public welfare and for the advancement of public policy, we have determined to overrulethe defense of want of jurisdiction in order that we may decide the main issue. We have here anextraordinary situation which calls for a relaxation of the general rule." Our ruling on this point wassustained by the Supreme Court of the United States. A more binding authority in support of the view wehave taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has beenproperly 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 theConstitution. 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 conflictwith the fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in clearcases, 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 reasonabledoubts should be resolved in favor of the constitutionality of a statute. An act of the legislature approvedby the executive, is presumed to be within constitutional limitations. The responsibility of upholding theConstitution rests not on the courts alone but on the legislature as well. "The question of the validity ofevery statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu



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[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. Themembers of the Legislature and the Chief Executive have taken an oath to support the Constitution and itmust be presumed that they have been true to this oath and that in enacting and sanctioning a particularlaw they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power tooverturn 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 thepeople 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 aproposition too plain to require a citation of authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention tothe fact that the President of the Philippines had already expressed his opinion against the constitutionalityof the Probation Act, adverting that as to the Executive the resolution of this question was a foregoneconclusion. Counsel, however, reiterated his confidence in the integrity and independence of this court. Wetake notice of the fact that the President in his message dated September 1, 1937, recommended to theNational Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in theapproval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to certainconditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937, muchagainst his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair andvery 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 actualcontroversies submitted for our determination. Whether or not the Executive should express or in anymanner insinuate his opinion on a matter encompassed within his broad constitutional power of veto butwhich happens to be at the same time pending determination in this court is a question of propriety forhim 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 isthe proper course of action to take in a given case. It if is ever necessary for us to make any vehementaffirmance during this formative period of our political history, it is that we are independent of theExecutive no less than of the Legislative department of our government independent in theperformance of our functions, undeterred by any consideration, free from politics, indifferent to popularityand unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act

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

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in forceat 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 andforfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) Theprovisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive" found inthe Jones Law has been omitted from the Constitution. Under the Jones Law, as at common law, pardoncould 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 personbefore 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 beexercised "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 ofthe United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleadedin bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard anddetermined, 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 isobvious. In England, Judgment on impeachment is not confined to mere "removal from office anddisqualification 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



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committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment, perpetuabanishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offensecommitted, 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 toimpose, in the pardons he may grant, such conditions, restrictions and limitations as he may deem properAmnesty may be granted by the President under the Constitution but only with the concurrence of theNational Assembly. We need not dwell at length on the significance of these fundamental changes. It issufficient for our purposes to state that the pardoning power has remained essentially the same. Thequestion is: Has the pardoning power of the Chief Executive under the Jones Law been impaired by theProbation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. Theexercise 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 anylegislative restrictions, nor can like power be given by the legislature to any other officer or authority. Thecoordinate departments of government have nothing to do with the pardoning power, since no personproperly belonging to one of the departments can exercise any powers appertaining to either of the othersexcept in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . wherethe pardoning power is conferred on the executive without express or implied limitations, the grant isexclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, norinterfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No.4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void

But does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the UnitedStates 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 thatunder the common law the power of the court was limited to temporary suspension and that the right tosuspend sentenced absolutely and permanently was vested in the executive branch of the governmentand not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Saidthe court through its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of theimposition of penalties as fixed to be subject, by probation legislation or such other means as thelegislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet bythe 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 ofthings adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision ledthe National Probation Association and others to agitate for the enactment by Congress of a federaprobation 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 numberof probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), theSupreme Court of the United States, through Chief Justice Taft, held that when a person sentenced toimprisonment by a district court has begun to serve his sentence, that court has no power under theProbation Act of March 4, 1925 to grant him probation even though the term at which sentence wasimposed had not yet expired. In this case of Murray, the constitutionality of the probation Act was notconsidered 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, 68thCongress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised aform of probation either, by suspending sentence or by placing the defendants under stateprobation 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 Courtdenied the right of the district courts to suspend sentenced. In the same opinion the court pointedout the necessity for action by Congress if the courts were to exercise probation powers in thefuture . . .



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Since this decision was rendered, two attempts have been made to enact probationlegislation. 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 wasnever reached for definite action.

If this bill is enacted into law, it will bring the policy of the Federal government with referenceto its treatment of those convicted of violations of its criminal laws in harmony with that of thestates of the Union. At the present time every state has a probation law, and in all but twelve statesthe 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. InRiggs 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 considerationhave been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and theconstitutionality of the act fully sustained, and the same held in no manner to encroach upon thepardoning power of the President. This case will be found to contain an able and comprehensivereview of the law applicable here. It arose under the act we have to consider, and to it and theauthorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also toa decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762),likewise construing the Probation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocallanguage, pointed to Congress as possessing the requisite power to enact probation laws, that a federaprobation law as actually enacted in 1925, and that the constitutionality of the Act has been assumed bythe Supreme Court of the United States in 1928 and consistently sustained by the inferior federal courts ina number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, maylegally 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. 1916A1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to denominate anddefine all classes of crime, and to prescribe for each a minimum and maximum punishment." And in Statevs. 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 thegeneral assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to beimposed, as to the beginning and end of the punishment and whether it should be certain or indeterminateor conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the PhilippineLegislature has defined all crimes and fixed the penalties for their violation. Invariably, the legislature hasdemonstrated the desire to vest in the courts particularly the trial courts large discretion in imposingthe penalties which the law prescribes in particular cases. It is believed that justice can best be served byvesting this power in the courts, they being in a position to best determine the penalties which anindividual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrainfrom imposing a sentence merely because, taking into consideration the degree of malice and the injurycaused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in suchcase to submit to the Chief Executive, through the Department of Justice, such statement as it may deemproper (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 indivisiblepenalties, the courts may allow such circumstances to offset one another in consideration of their numberand 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 thepenalty prescribed by law contains three periods, the extent of the evil produced by the crime. In theimposition 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 ormeans of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code providesthat "a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age,



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who has not acted without discernment, but always lower by two degrees at least than that prescribed bylaw 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 ofsome of the conditions required to justify the same or to exempt from criminal liability in the several casesmentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which maybe 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 thesocial danger and the degree of criminality shown by the offender," shall impose upon him either arrestomayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deductedform the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the deathpenalty is not imposed when the guilty person is more than seventy years of age, or where upon appeal orrevision of the case by the Supreme Court, all the members thereof are not unanimous in their voting as tothe propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised AdministrativeCode, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a womanwithin the three years next following the date of the sentence or while she is pregnant, or upon any personover seventy years of age (art. 83); and when a convict shall become insane or an imbecile after finalsentence has been pronounced, or while he is serving his sentenced, the execution of said sentence shallbe 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 theIndeterminate 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 imposingthe penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prisonsentence for an offenses punished by the Revised Penal Code, or its amendments, the court shall sentencethe accused to an indeterminate sentence the maximum term of which shall be that which, in view of theattending circumstances, could be properly imposed under the rules of the said Code, and to a minimumwhich 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 indeterminatesentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimumshall not be less than the minimum term prescribed by the same." Certain classes of convicts are, bysection 2 of the law, excluded from the operation thereof. The Legislature has also enacted the JuvenileDelinquency 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 No99 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 bypermitting the suspension of the execution of the judgment in the discretion of the trial court, after duehearing 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 nopunishment at all shall be suffered by the convict as long as the conditions of probation are faithfullyobserved. It this be so, then, it cannot be said that the Probation Act comes in conflict with the power ofthe Chief Executive to grant pardons and reprieves, because, to use the language of the Supreme Court ofNew Mexico, "the element of punishment or the penalty for the commission of a wrong, while to bedeclared by the courts as a judicial function under and within the limits of law as announced by legislativeacts, 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), thecourt upheld the constitutionality of the Georgia probation statute against the contention that it attemptedto delegate to the courts the pardoning power lodged by the constitution in the governor alone is vestedwith the power to pardon after final sentence has been imposed by the courts, the power of the courts toimposed any penalty which may be from time to time prescribed by law and in such manner as may bedefined cannot be questioned."

We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawfulfor the legislature to vest in the courts the power to suspend the operation of a sentenced, by probation orotherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel



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Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1Okla. 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 relPayne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571;States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs.

Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs.States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122Pac., 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], 69Colo., 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 vsState [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64Atl., 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; Stateex 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; 95S. 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; Richardsonvs. 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 electto follow this long catena of authorities holding that the courts may be legally authorized by the legislatureto 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 particularmention. In that case, a statute enacted in 1921 which provided for the suspension of the execution of asentence until otherwise ordered by the court, and required that the convicted person be placed under thecharge of a parole or peace officer during the term of such suspension, on such terms as the court maydetermine, was held constitutional and as not giving the court a power in violation of the constitutionalprovision vesting the pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912]18 Cal App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually district anddifferent 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 ofAppeals of New York said:

. . . The power to suspend sentence and the power to grant reprieves and pardons, asunderstood when the constitution was adopted, are totally distinct and different in their nature. Theformer 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 orindefinitely, but the conviction and liability following it, and the civil disabilities, remain and becomeoperative when judgment is rendered. A pardon reaches both the punishment prescribed for theoffense and the guilt of the offender. It releases the punishment, and blots out of existence theguilt, so that in the eye of the law, the offender is as innocent as if he had never committed theoffense. It removes the penalties and disabilities, and restores him to all his civil rights. It makeshim, as it were, a new man, and gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4



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Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U.S., 95 U. S., 149; 24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly familiar with theprinciples governing the power to grant pardons, and it was conferred by these instruments uponthe executive with full knowledge of the law upon the subject, and the words of the constitutionwere used to express the authority formerly exercised by the English crown, or by itsrepresentatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As thispower 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 shouldabrogate, or in any degree restrict, the exercise of that power in regard to its own judgments, thatcriminal courts has so long maintained. The two powers, so distinct and different in their nature andcharacter, were still left separate and distinct, the one to be exercised by the executive, and theother by the judicial department. We therefore conclude that a statute which, in terms, authorizescourts of criminal jurisdiction to suspend sentence in certain cases after conviction, a powerinherent in such courts at common law, which was understood when the constitution was adoptedto be an ordinary judicial function, and which, ever since its adoption, has been exercised oflegislative power under the constitution. It does not encroach, in any just sense, upon the powers ofthe executive, as they have been understood and practiced from the earliest times. (Quoted withapproval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally andcompletely exonerated. He is not exempt from the entire punishment which the law inflicts. Under theProbation 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 finallydischarged from supervision only after the period of probation shall have been terminated and theprobation officer shall have submitted a report, and the court shall have found that the probationer hascomplied with the conditions of probation. The probationer, then, during the period of probation, remainsin legal custody subject to the control of the probation officer and of the court; and, he may berearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committedto prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)

The probation described in the act is not pardon. It is not complete liberty, and may be farfrom 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 itsapplication is as purely a judicial act as any other sentence carrying out the law deemed applicableto the offense. The executive act of pardon, on the contrary, is against the criminal law, which bindsand directs the judges, or rather is outside of and above it. There is thus no conflict with thepardoning power, and no possible unconstitutionality of the Probation Act for this cause. (Archer vsSnook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence.Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is reliedupon most strongly by the petitioners as authority in support of their contention that the power to grantpardons and reprieves, having been vested exclusively upon the Chief Executive by the Jones Law, maynot 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 districtcourts the power to grant pardons to persons convicted of crime, it also distinguished betweensuspensions sentence on the one hand, and reprieve and commutation of sentence on the other. Said thecourt, through Harper,J.:

That the power to suspend the sentence does not conflict with the power of the Governor togrant reprieves is settled by the decisions of the various courts; it being held that the distinctionbetween a "reprieve" and a suspension of sentence is that a reprieve postpones the execution ofthe sentence to a day certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words &



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Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the power confiding in theGovernor to grant commutations of punishment, for a commutations is not but to change thepunishment assessed to a less punishment.

In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), th

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