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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

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

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI

BANKING CORPORATION, petitioners,

vs.

JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU

UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.

De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking

Corporation.

Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and

McDonough for respondent Cu Unjieng.

No appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on August 19, 1937, for the

issuance of the writ of certiorari and of prohibition to the Court of First Instance of

Manila so that this court may review the actuations of the aforesaid Court of First

Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs.

Mariano Cu Unjieng, et al.", more particularly the application of the defendant Mariano

Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter

prohibit the said Court of First Instance from taking any further action or entertaining

further the aforementioned application for probation, to the end that the defendant

Mariano Cu Unjieng may be forthwith committed to prison in accordance with the final

judgment of conviction rendered by this court in said case (G. R. No. 41200). 1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai

Banking Corporation, are respectively the plaintiff and the offended party, and the

respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case

entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal

case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this

court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh

branch of the Court of First Instance of Manila, who heard the application of the

defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First

Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai

Banking Corporation intervening in the case as private prosecutor. After a protracted

trial unparalleled in the annals of Philippine jurisprudence both in the length of time

spent by the court as well as in the volume in the testimony and the bulk of the exhibits

presented, the Court of First Instance of Manila, on January 8, 1934, rendered a

judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate

penalty ranging from four years and two months of prision correccional to eight years of

prision mayor, to pay the costs and with reservation of civil action to the offended party,

the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March

26, 1935, modified the sentence to an indeterminate penalty of from five years and six

months of prision correccional to seven years, six months and twenty-seven days of

prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed

a motion for reconsideration and four successive motions for new trial which were

denied on December 17, 1935, and final judgment was accordingly entered on

December 18, 1935. The defendant thereupon sought to have the case elevated on

certiorari to the Supreme Court of the United States but the latter denied the petition for

certiorari in November, 1936. This court, on November 24, 1936, denied

the petition subsequently filed by the defendant for leave to file a second alternative

motion for reconsideration or new trial and thereafter remanded the case to the court of

origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the

herein respondent Mariano Cu Unjieng on November 27, 1936, before the trial

court, under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein

respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the

crime of which he was convicted, that he has no criminal record and that he would

observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro

Tuason presiding, referred the application for probation of the Insular Probation Office

which recommended denial of the same June 18, 1937. Thereafter, the Court of First

Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for

hearing on April 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting

of probation to the herein respondent Mariano Cu Unjieng. The private prosecution also

filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221,

assuming that it has not been repealed by section 2 of Article XV of the Constitution, is

nevertheless violative of section 1, subsection (1), Article III of the Constitution

guaranteeing equal protection of the laws for the reason that its applicability is not

uniform throughout the Islands and because section 11 of the said Act endows the

provincial boards with the power to make said law effective or otherwise in their

respective or otherwise in their respective provinces. The private prosecution also filed

a supplementary opposition on April 19, 1937, elaborating on the alleged

unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the

provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal

concurred in the opposition of the private prosecution except with respect to the

questions raised concerning the constitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a

resolution with a finding that "las pruebas no han establecido de unamanera

concluyente la culpabilidad del peticionario y que todos los hechos probados no son

inconsistentes o incongrentes con su inocencia" and concludes that the herein

respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which

he stands convicted by this court in G.R. No. 41200, but denying the latter's petition for

probation for the reason that:

. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la

historia social que se han expuesto en el cuerpo de esta resolucion, que hacen al

peticionario acreedor de la misma, una parte de la opinion publica, atizada por los

recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion

que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando

la quietud y la eficacia de las decisiones ya recaidas al traer a la superficie

conclusiones enteramente differentes, en menoscabo del interes publico que demanda

el respeto de las leyes y del veredicto judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an

exception to the resolution denying probation and a notice of intention to file a motion

for reconsideration. An alternative motion for reconsideration or new trial was filed by

counsel on July 13, 1937. This was supplemented by an additional motion for

reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing

on July 31, 1937, but said hearing was postponed at the petition of counsel for the

respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as

amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial

court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion

subsequently filed a petition for leave to withdraw his appearance as amicus curiae on

the ground that the motion for leave to intervene as amici curiae was circulated at a

banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and

that he signed the same "without mature deliberation and purely as a matter of courtesy

to the person who invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial

court for the issuance of an order of execution of the judgment of this court in said case

and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience

to said judgment.

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

leave to intervene as amici curiae aforementioned, asking that a date be set for a

hearing of the same and that, at all events, said motion should be denied with respect to

certain attorneys signing the same who were members of the legal staff of the several

counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O.

Vera issued an order requiring all parties including the movants for intervention as amici

curiae to appear before the court on August 14, 1937. On the last-mentioned date, the

Fiscal of the City of Manila moved for the hearing of his motion for execution of

judgment in preference to the motion for leave to intervene as amici curiae but, upon

objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the

hearing of both motions. The respondent judge thereupon set the hearing of the motion

for execution on August 21, 1937, but proceeded to consider the motion for leave to

intervene as amici curiae as in order. Evidence as to the circumstances under which

said motion for leave to intervene as amici curiae was signed and submitted to court

was to have been heard on August 19, 1937. But at this juncture, herein petitioners

came to this court on extraordinary legal process to put an end to what they alleged was

an interminable proceeding in the Court of First Instance of Manila which fostered "the

campaign of the defendant Mariano Cu Unjieng for delay in the execution of the

sentence imposed by this Honorable Court on him, exposing the courts to criticism and

ridicule because of the apparent inability of the judicial machinery to make effective a

final judgment of this court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspended upon the

issuance of a temporary restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari

and prohibition, herein petitioners allege that the respondent judge has acted without

jurisdiction or in excess of his jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu

Unjieng under probation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to

apply only to the provinces of the Philippines; it nowhere states that it is to be made

applicable to chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in

the absence of a special provision, the term "province" may be construed to include the

City of Manila for the purpose of giving effect to laws of general application, it is also

true that Act No. 4221 is not a law of general application because it is made to apply

only to those provinces in which the respective provincial boards shall have provided for

the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would

not be applicable to it because it has provided for the salary of a probation officer as

required by section 11 thereof; it being immaterial that there is an Insular Probation

Officer willing to act for the City of Manila, said Probation Officer provided for in section

10 of Act No. 4221 being different and distinct from the Probation Officer provided for in

section 11 of the same Act.

II. Because even if the respondent judge originally had jurisdiction to entertain the

application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted

without jurisdiction or in excess thereof in continuing to entertain the motion for

reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had

promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application

for probation, for the reason that:

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

granting or denying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on

June 28, 1937, it became final and executory at the moment of its rendition.

(3) No right on appeal exists in such cases.

(4) The respondent judge lacks the power to grant a rehearing of said order or to modify

or change the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent

of the crime for which he was convicted by final judgment of this court, which finding is

not only presumptuous but without foundation in fact and in law, and is furthermore in

contempt of this court and a violation of the respondent's oath of office as ad interim

judge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which

became imperative when he issued his order of June 28, 1937, denying the application

for probation, to commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate

remedy in the ordinary course of law.

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

and Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine

Legislature providing for a system of probation for persons eighteen years of age or

over who are convicted of crime, is unconstitutional because it is violative of section 1,

subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal

protection of the laws because it confers upon the provincial board of its province the

absolute discretion to make said law operative or otherwise in their respective

provinces, because it constitutes an unlawful and improper delegation to the provincial

boards of the several provinces of the legislative power lodged by the Jones Law

(section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the

National Assembly; and for the further reason that it gives the provincial boards, in

contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28),

the authority to enlarge the powers of the Court of First Instance of different provinces

without uniformity. In another supplementary petition dated September 14, 1937, the

Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the

Philippine Islands, concurs for the first time with the issues raised by other petitioner

regarding the constitutionality of Act No. 4221, and on the oral argument held on

October 6, 1937, further elaborated on the theory that probation is a form of reprieve

and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief

Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two

memorandums in which he contended that Act No. 4221 not only encroaches upon the

pardoning power to the executive, but also constitute an unwarranted delegation of

legislative power and a denial of the equal protection of the laws. On October 9, 1937,

two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in

behalf of the People of the Philippine Islands, and by counsel for the petitioner, the

Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to

impugn the validity of its own laws and the other contending that Act No. 4221

constitutes an unwarranted delegation of legislative power, were presented. Another

joint memorandum was filed by the same persons on the same day, October 9, 1937,

alleging that Act No. 4221 is unconstitutional because it denies the equal protection of

the laws and constitutes an unlawful delegation of legislative power and, further, that the

whole Act is void: that the Commonwealth is not estopped from questioning the validity

of its laws; that the private prosecution may intervene in probation proceedings and may

attack the probation law as unconstitutional; and that this court may pass upon the

constitutional question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral

argument and memorandums, challenge each and every one of the foregoing

proposition raised by the petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the issuance

of the writ of certiorari or of prohibition.

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

petitioners is the very same remedy prayed for by them before the trial court and was

still pending resolution before the trial court when the present petition was filed with this

court.

(3) That the petitioners having themselves raised the question as to the execution of

judgment before the trial court, said trial court has acquired exclusive jurisdiction to

resolve the same under the theory that its resolution denying probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of

First Instance to decide the question as to whether or not the execution will lie, this court

nevertheless cannot exercise said jurisdiction while the Court of First Instance has

assumed jurisdiction over the same upon motion of herein petitioners themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to deprive the

trial court of its jurisdiction over the case and elevate the proceedings to this court,

should not be tolerated because it impairs the authority and dignity of the trial court

which court while sitting in the probation cases is "a court of limited jurisdiction but of

great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the question

submitted to and pending resolution by the trial court, the present action would not lie

because the resolution of the trial court denying probation is appealable; for although

the Probation Law does not specifically provide that an applicant for probation may

appeal from a resolution of the Court of First Instance denying probation, still it is a

general rule in this jurisdiction that a final order, resolution or decision of an inferior

court is appealable to the superior court.

(7) That the resolution of the trial court denying probation of herein respondent Mariano

Cu Unjieng being appealable, the same had not become final and executory for the

reason that the said respondent had filed an alternative motion for reconsideration and

new trial within the requisite period of fifteen days, which motion the trial court was able

to resolve in view of the restraining order improvidently and erroneously issued by this

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(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of

the trial court denying probation is not final and unappealable when he presented his

answer to the motion for reconsideration and agreed to the postponement of the hearing

of the said motion.

(9) That under the supposition that the order of the trial court denying probation is not

appealable, it is incumbent upon the accused to file an action for the issuance of the writ

of certiorari with mandamus, it appearing that the trial court, although it believed that the

accused was entitled to probation, nevertheless denied probation for fear of criticism

because the accused is a rich man; and that, before a petition for certiorari grounded on

an irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon the

petitioner to file a motion for reconsideration specifying the error committed so that the

trial court could have an opportunity to correct or cure the same.

(10) That on hypothesis that the resolution of this court is not appealable, the trial court

retains its jurisdiction within a reasonable time to correct or modify it in accordance with

law and justice; that this power to alter or modify an order or resolution is inherent in the

courts and may be exercise either motu proprio or upon petition of the proper party, the

petition in the latter case taking the form of a motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as

respondent allege, said court cannot order execution of the same while it is on appeal,

for then the appeal would not be availing because the doors of probation will be closed

from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1;

U.S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937, counsel for the respondents

maintain that Act No. 4221 is constitutional because, contrary to the allegations of the

petitioners, it does not constitute an undue delegation of legislative power, does not

infringe the equal protection clause of the Constitution, and does not encroach upon the

pardoning power of the Executive. In an additional memorandum filed on the same

date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is

free from constitutional objections and contend, in addition, that the private prosecution

may not intervene in probation proceedings, much less question the validity of Act No.

4221; that both the City Fiscal and the Solicitor-General are estopped from questioning

the validity of the Act; that the validity of Act cannot be attacked for the first time before

this court; that probation in unavailable; and that, in any event, section 11 of the Act No.

4221 is separable from the rest of the Act. The last memorandum for the respondent

Mariano Cu Unjieng was denied for having been filed out of time but was admitted by

resolution of this court and filed anew on November 5, 1937. This memorandum

elaborates on some of the points raised by the respondents and refutes those brought

up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspects of the

present case, we noted that the court below, in passing upon the merits of the

application of the respondent Mariano Cu Unjieng and in denying said application

assumed the task not only of considering the merits of the application, but of passing

upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by

this court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation

case may look into the circumstances attending the commission of the offense, this

does not authorize it to reverse the findings and conclusive of this court, either directly

or indirectly, especially wherefrom its own admission reliance was merely had on the

printed briefs, averments, and pleadings of the parties. As already observed by this

court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent

cases, "if each and every Court of First Instance could enjoy the privilege of overruling

decisions of the Supreme Court, there would be no end to litigation, and judicial chaos

would result." A becoming modesty of inferior courts demands conscious realization of

the position that they occupy in the interrelation and operation of the intergrated judicial

system of the nation.

After threshing carefully the multifarious issues raised by both counsel for the

petitioners and the respondents, this court prefers to cut the Gordian knot and take up

at once the two fundamental questions presented, namely, (1) whether or not the

constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2)

in the affirmative, whether or not said Act is constitutional. Considerations of these

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

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

principles is necessary. It is a well-settled rule that the constitutionality of an act of the

legislature will not be determined by the courts unless that question is properly raised

and presented inappropriate cases and is necessary to a determination of the case; i.e.,

the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton

and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised

in ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies,

particularly where the remedies in the ordinary course of law even if available, are not

plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818),

this court held that the question of the constitutionality of a statute may be raised by the

petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of

the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.

Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this

court declared an act of the legislature unconstitutional in an action of quo warranto

brought in the name of the Government of the Philippines. It has also been held that the

constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J.,

p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to

the contrary; on an application for injunction to restrain action under the challenged

statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an

application for preliminary injunction where the determination of the constitutional

question is necessary to a decision of the case. (12 C. J., p. 783.) The same may be

said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil.,

385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court

[1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N.

S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this

court twelve years ago was, like the present one, an original action for certiorari and

prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese

Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue

was not met squarely by the respondent in a demurrer. A point was raised "relating to

the propriety of the constitutional question being decided in original proceedings in

prohibition." This court decided to take up the constitutional question and, with two

justices dissenting, held that Act No. 2972 was constitutional. The case was elevated on

writ of certiorari to the Supreme Court of the United States which reversed the judgment

of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On

the question of jurisdiction, however, the Federal Supreme Court, though its Chief

Justice, said:

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

Philippine supreme court is granted concurrent jurisdiction in prohibition with courts of

first instance over inferior tribunals or persons, and original jurisdiction over courts of

first instance, when such courts are exercising functions without or in excess of their

jurisdiction. It has been held by that court that the question of the validity of the criminal

statute must usually be raised by a defendant in the trial court and be carried regularly

in review to the Supreme Court. (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.

The writ of prohibition is an extraordinary judicial writ issuing out of a court of

superior jurisdiction and directed to an inferior court, for the purpose of preventing the

inferior tribunal from usurping a jurisdiction with which it is not legally vested. (High,

Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in

the cases, is that the merit of prohibition will not lie whether the inferior court has

jurisdiction independent of the statute the constitutionality of which is questioned,

because in such cases the interior court having jurisdiction may itself determine the

constitutionality of the statute, and its decision may be subject to review, and

consequently the complainant in such cases ordinarily has adequate remedy by appeal

without resort to the writ of prohibition. But where the inferior court or tribunal derives its

jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ

of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51

Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384;

84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W.

Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction

solely from Act No. 4221 which prescribes in detailed manner the procedure for granting

probation to accused persons after their conviction has become final and before they

have served their sentence. It is true that at common law the authority of the courts to

suspend temporarily the execution of the sentence is recognized and, according to a

number of state courts, including those of Massachusetts, Michigan, New York, and

Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],

115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex

rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58

Ohio St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27;

61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355),

the Supreme Court of the United States expressed the opinion that under the common

law the power of the court was limited to temporary suspension, and brushed aside the

contention as to inherent judicial power saying, through Chief Justice White:

Indisputably under our constitutional system the right to try offenses against the

criminal laws and upon conviction to impose the punishment provided by law is judicial,

and it is equally to be conceded that, in exerting the powers vested in them on such

subject, courts inherently possess ample right to exercise reasonable, that is, judicial,

discretion to enable them to wisely exert their authority. But these concessions afford no

ground for the contention as to power here made, since it must rest upon the

proposition that the power to enforce begets inherently a discretion to permanently

refuse to do so. And the effect of the proposition urged upon the distribution of powers

made by the Constitution will become apparent when it is observed that indisputable

also is it that the authority to define and fix the punishment for crime is legislative and

includes the right in advance to bring within judicial discretion, for the purpose of

executing the statute, elements of consideration which would be otherwise beyond the

scope of judicial authority, and that the right to relieve from the punishment, fixed by law

and ascertained according to the methods by it provided belongs to the executive

department.

Justice Carson, in his illuminating concurring opinion in the case of Director of

Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in

1915, also reached the conclusion that the power to suspend the execution of

sentences pronounced in criminal cases is not inherent in the judicial function. "All are

agreed", he said, "that in the absence of statutory authority, it does not lie within the

power of the courts to grant such suspensions." (at p. 278.) Both petitioner and

respondents are correct, therefore, when they argue that a Court of First Instance sitting

in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such

proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on

application for prohibition where the question has not been properly brought to the

attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30

S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case

at bar, it is unquestionable that the constitutional issue has been squarely presented not

only before this court by the petitioners but also before the trial court by the private

prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court

below, declined to pass upon the question on the ground that the private prosecutor, not

being a party whose rights are affected by the statute, may not raise said question. The

respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec.

177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E.,

742, 743), as authority for the proposition that a court will not consider any attack made

on the constitutionality of a statute by one who has no interest in defeating it because

his rights are not affected by its operation. The respondent judge further stated that it

may not motu proprio take up the constitutional question and, agreeing with Cooley that

"the power to declare a legislative enactment void is one which the judge, conscious of

the fallibility of the human judgment, will shrink from exercising in any case where he

can conscientiously and with due regard to duty and official oath decline the

responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the

assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits

that the constitutional question was raised before it, it refused to consider the question

solely because it was not raised by a proper party. Respondents herein reiterates this

view. The argument is advanced that the private prosecution has no personality to

appear in the hearing of the application for probation of defendant Mariano Cu Unjieng

in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue

of constitutionality was not properly raised in the lower court. Although, as a general

rule, only those who are parties to a suit may question the constitutionality of a statute

involved in a judicial decision, it has been held that since the decree pronounced by a

court without jurisdiction is void, where the jurisdiction of the court depends on the

validity of the statute in question, the issue of the constitutionality will be considered on

its being brought to the attention of the court by persons interested in the effect to be

given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the

issue was not properly raised in the court below by the proper party, it does not follow

that the issue may not be here raised in an original action of certiorari and prohibitions.

It is true that, as a general rule, the question of constitutionality must be raised at the

earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised

at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J.,

p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-

195.) But we must state that the general rule admits of exceptions. Courts, in the

exercise of sounds discretion, may determine the time when a question affecting the

constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,

144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is

said that the question may be raised for the first time at any stage of the proceedings,

either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been

held that it is the duty of a court to pass on the constitutional question, though raised for

the first time on appeal, if it appears that a determination of the question is necessary to

a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky.,

674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S.

W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And

it has been held that a constitutional question will be considered by an appellate court at

any time, where it involves the jurisdiction of the court below (State vs. Burke [1911],

175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional

question raised for the first time before this court in these proceedings, we turn again

and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the

hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the

private prosecution, is not the proper party to raise the constitutional question here — a

point we do not now have to decide — we are of the opinion that the People of the

Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is

such a proper party in the present proceedings. The unchallenged rule is that the

person who impugns the validity of a statute must have a personal and substantial

interest in the case such that he has sustained, or will sustained, direct injury as a result

of its enforcement. It goes without saying that if Act No. 4221 really violates the

constitution, the People of the Philippines, in whose name the present action is brought,

has a substantial interest in having it set aside. Of grater import than the damage

caused by the illegal expenditure of public funds is the mortal wound inflicted upon the

fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule

that the state can challenge the validity of its own laws. In Government of the Philippine

Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the

Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of

the legislature unconstitutional in an action instituted in behalf of the Government of the

Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W.

426, 428, 429), the State of Michigan, through its Attorney General, instituted quo

warranto proceedings to test the right of the respondents to renew a mining corporation,

alleging that the statute under which the respondents base their right was

unconstitutional because it impaired the obligation of contracts. The capacity of the chief

law officer of the state to question the constitutionality of the statute was though, as a

general rule, only those who are parties to a suit may question the constitutionality of a

statute involved in a judicial decision, it has been held that since the decree pronounced

by a court without jurisdiction in void, where the jurisdiction of the court depends on the

validity of the statute in question, the issue of constitutionality will be considered on its

being brought to the attention of the court by persons interested in the effect to begin

the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue

was not properly raised in the court below by the proper party, it does not follow that the

issue may not be here raised in an original action of certiorari and prohibition. It is true

that, as a general rule, the question of constitutionality must be raised at the earliest

opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the

trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p.

786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-

195.) But we must state that the general rule admits of exceptions. Courts, in the

exercise of sound discretion, may determine the time when a question affecting the

constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135,

144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is

said that the question may be raised for the first time at any state of the proceedings,

either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been

held that it is the duty of a court to pass on the constitutional question, though raised for

first time on appeal, if it appears that a determination of the question is necessary to a

decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky.,

674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S.

W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And

it has been held that a constitutional question will be considered by an appellate court at

any time, where it involves the jurisdiction of the court below (State vs. Burke [1911],

175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional

question raised for the first time before this court in these proceedings, we turn again

and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the

hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the

private prosecution, is not the proper party to raise the constitutional question here — a

point we do not now have to decide — we are of the opinion that the People of the

Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is

such a proper party in the present proceedings. The unchallenged rule is that the

person who impugns the validity of a statute must have a personal and substantial

interest in the case such that he has sustained, or will sustain, direct injury as a result of

its enforcement. It goes without saying that if Act No. 4221 really violates the

Constitution, the People of the Philippines, in whose name the present action is brought,

has a substantial interest in having it set aside. Of greater import than the damage

caused by the illegal expenditure of public funds is the mortal wound inflicted upon the

fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule

that the state can challenge the validity of its own laws. In Government of the Philippine

Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the

Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of

the legislature unconstitutional in an action instituted in behalf of the Government of the

Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W.,

426, 428, 429), the State of Michigan, through its Attorney General, instituted quo

warranto proceedings to test the right of the respondents to renew a mining corporation,

alleging that the statute under which the respondents base their right was

unconstitutional because it impaired the obligation of contracts. The capacity of the chief

law officer of the state to question the constitutionality of the statute was itself

questioned. Said the Supreme Court of Michigan, through Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the

validity of a law enacted by their representatives; that to an accusation by the people of

Michigan of usurpation their government, a statute enacted by the people of Michigan is

an adequate answer. The last proposition is true, but, if the statute relied on in

justification is unconstitutional, it is statute only in form, and lacks the force of law, and

is of no more saving effect to justify action under it than if it had never been enacted.

The constitution is the supreme law, and to its behests the courts, the legislature, and

the people must bow . . . The legislature and the respondents are not the only parties in

interest upon such constitutional questions. As was remarked by Mr. Justice Story, in

speaking of an acquiescence by a party affected by an unconstitutional act of the

legislature: "The people have a deep and vested interest in maintaining all the

constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1

Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action

(mandamus) was brought by the Attorney-General of Kansas to test the constitutionality

of a statute of the state. In disposing of the question whether or not the state may bring

the action, the Supreme Court of Kansas said:

. . . the state is a proper party — indeed, the proper party — to bring this action.

The state is always interested where the integrity of its Constitution or statutes is

involved.

"It has an interest in seeing that the will of the Legislature is not disregarded, and

need not, as an individual plaintiff must, show grounds of fearing more specific injury.

(State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707;

103 Pac., 839.)

Where the constitutionality of a statute is in doubt the state's law officer, its

Attorney-General, or county attorney, may exercise his bet judgment as to what sort of

action he will bring to have the matter determined, either by quo warranto to challenge

its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by

mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac.,

846), or by injunction to restrain proceedings under its questionable provisions (State ex

rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122).

Other courts have reached the same conclusion (See State vs. St. Louis S. W.

Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State

vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934],

39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E.,

1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176

La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said:

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

charged with the duty of enforcing the laws, has no right to plead that a law is

unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel.

Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex

rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So.,

592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So.,

746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a

statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce.

In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should

not, merely because he believed a certain statute to be unconstitutional forbid the

district attorney to file a bill of information charging a person with a violation of the

statute. In other words, a judge should not judicially declare a statute unconstitutional

until the question of constitutionality is tendered for decision, and unless it must be

decided in order to determine the right of a party litigant. State ex rel. Nicholls,

Governor, etc., is authority for the proposition merely that an officer on whom a statute

imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that

he considers the statute unconstitutional, and hence in enforcing the statute he is

immune from responsibility if the statute be unconstitutional. State ex rel. Banking Co.,

etc., is authority for the proposition merely that executive officers, e.g., the state auditor

and state treasurer, should not decline to perform ministerial duties imposed upon them

by a statute, on the ground that they believe the statute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and,

above all, to support the Constitution of the state. If, in the performance of his duty he

finds two statutes in conflict with each other, or one which repeals another, and if, in his

judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other;

and, in order to do so, he is compelled to submit to the court, by way of a plea, that one

of the statutes is unconstitutional. If it were not so, the power of the Legislature would

be free from constitutional limitations in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general

proposition that the state may impugn the validity of its laws. They have not cited any

authority running clearly in the opposite direction. In fact, they appear to have

proceeded on the assumption that the rule as stated is sound but that it has no

application in the present case, nor may it be invoked by the City Fiscal in behalf of the

People of the Philippines, one of the petitioners herein, the principal reasons being that

the validity before this court, that the City Fiscal is estopped from attacking the validity

of the Act and, not authorized challenge the validity of the Act in its application outside

said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and

23.)

The mere fact that the Probation Act has been repeatedly relied upon the past

and all that time has not been attacked as unconstitutional by the Fiscal of Manila but,

on the contrary, has been impliedly regarded by him as constitutional, is no reason for

considering the People of the Philippines estopped from nor assailing its validity. For

courts will pass upon a constitutional questions only when presented before it in bona

fide cases for determination, and the fact that the question has not been raised before is

not a valid reason for refusing to allow it to be raised later. The fiscal and all others are

justified in relying upon the statute and treating it as valid until it is held void by the

courts in proper cases.

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

4221 is necessary to the resolution of the instant case. For, ". . . while the court will

meet the question with firmness, where its decision is indispensable, it is the part of

wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in

which it arises, can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas.

No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has

been held that the determination of a constitutional question is necessary whenever it is

essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs.

Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E.,

849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto

Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs.

Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is

founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing

Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs.

Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu

Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of

the fact that the Probation Act is a new addition to our statute books and its validity has

never before been passed upon by the courts; that may persons accused and convicted

of crime in the City of Manila have applied for probation; that some of them are already

on probation; that more people will likely take advantage of the Probation Act in the

future; and that the respondent Mariano Cu Unjieng has been at large for a period of

about four years since his first conviction. All wait the decision of this court on the

constitutional question. Considering, therefore, the importance which the instant case

has assumed and to prevent multiplicity of suits, strong reasons of public policy demand

that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad

[1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78;

People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616;

Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489;

Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs.

Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the

property and personal rights of nearly twelve thousand merchants are affected by these

proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the

courts, in the interest of the public welfare and for the advancement of public policy, we

have determined to overrule the defense of want of jurisdiction in order that we may

decide the main issue. We have here an extraordinary situation which calls for a

relaxation of the general rule." Our ruling on this point was sustained by the Supreme

Court of the United States. A more binding authority in support of the view we have

taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act

No. 4221 has been properly raised. Now for the main inquiry: Is the Act

unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to

enforce the Constitution. This court, by clear implication from the provisions of section 2,

subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of

the national legislature invalid because in conflict with the fundamental lay. It will not

shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not

hesitate to give effect to the supreme law by setting aside a statute in conflict therewith.

This is of the essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that

all reasonable doubts should be resolved in favor of the constitutionality of a statute. An

act of the legislature approved by the executive, is presumed to be within constitutional

limitations. The responsibility of upholding the Constitution rests not on the courts alone

but on the legislature as well. "The question of the validity of every statute is first

determined by the legislative department of the government itself." (U.S. vs. Ten Yu

[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276;

U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts

sustained by the sanction of the executive. The members of the Legislature and the

Chief Executive have taken an oath to support the Constitution and it must be presumed

that they have been true to this oath and that in enacting and sanctioning a particular

law they did not intend to violate the Constitution. The courts cannot but cautiously

exercise its power to overturn the solemn declarations of two of the three grand

departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political

philosophy which bids the judiciary to reflect the wisdom of the people as expressed

through an elective Legislature and an elective Chief Executive. It follows, therefore,

that the courts will not set aside a law as violative of the Constitution except in a clear

case. This is a proposition too plain to require a citation of authorities.

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

called attention to the fact that the President of the Philippines had already expressed

his opinion against the constitutionality of the Probation Act, adverting that as to the

Executive the resolution of this question was a foregone conclusion. Counsel, however,

reiterated his confidence in the integrity and independence of this court. We take notice

of the fact that the President in his message dated September 1, 1937, recommended

to the National Assembly the immediate repeal of the Probation Act (No. 4221); that this

message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing

the probation Act, subject to certain conditions therein mentioned; but that said bill was

vetoed by the President on September 13, 1937, much against his wish, "to have

stricken out from the statute books of the Commonwealth a law . . . unfair and very likely

unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill

referred to, the President exercised his constitutional prerogative. He may express the

reasons which he may deem proper for taking such a step, but his reasons are not

binding upon us in the determination of actual controversies submitted for our

determination. Whether or not the Executive should express or in any manner insinuate

his opinion on a matter encompassed within his broad constitutional power of veto but

which happens to be at the same time pending determination in this court is a question

of propriety for him exclusively to decide or determine. Whatever opinion is expressed

by him under these circumstances, however, cannot sway our judgment on way or

another and prevent us from taking what in our opinion is the proper course of action to

take in a given case. It if is ever necessary for us to make any vehement affirmance

during this formative period of our political history, it is that we are independent of the

Executive no less than of the Legislative department of our government — independent

in the performance of our functions, undeterred by any consideration, free from politics,

indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn

duty as we see it and as we understand it.

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

That said Act encroaches upon the pardoning power of the Executive; (2) that its

constitutes an undue delegation of legislative power and (3) that it denies the equal

protection of the laws.

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

Jones Law, in force at the time of the approval of Act No. 4221, otherwise known as the

Probation Act, vests in the Governor-General of the Philippines "the exclusive power to

grant pardons and reprieves and remit fines and forfeitures". This power is now vested

in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the

Jones Law and the Constitution differ in some respects. The adjective "exclusive" found

in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at

common law, pardon could be granted any time after the commission of the offense,

either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In

re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus

empowered, like the President of the United States, to pardon a person before the facts

of the case were fully brought to light. The framers of our Constitution thought this

undesirable and, following most of the state constitutions, provided that the pardoning

power can only be exercised "after conviction". So, too, under the new Constitution, the

pardoning power does not extend to "cases of impeachment". This is also the rule

generally followed in the United States (Vide Constitution of the United States, Art. II,

sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar

of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly

heard and determined, it is not understood that the king's royal grace is further

restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421;

Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake

[1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In

England, Judgment on impeachment is not confined to mere "removal from office and

disqualification to hold and enjoy any office of honor, trust, or profit under the

Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole

punishment attached by law to the offense committed. The House of Lords, on a

conviction may, by its sentence, inflict capital punishment, perpetual banishment,

perpetual banishment, fine or imprisonment, depending upon the gravity of the offense

committed, together with removal from office and incapacity to hold office. (Com. vs.

Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and

of the power of the executive to impose, in the pardons he may grant, such conditions,

restrictions and limitations as he may deem proper. Amnesty may be granted by the

President under the Constitution but only with the concurrence of the National

Assembly. We need not dwell at length on the significance of these fundamental

changes. It is sufficient for our purposes to state that the pardoning power has remained

essentially the same. The question is: Has the pardoning power of the Chief Executive

under the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the

Chief Executive. The exercise of the power may not, therefore, be vested in anyone

else.

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

nor fettered by any legislative restrictions, nor can like power be given by the legislature

to any other officer or authority. The coordinate departments of government have

nothing to do with the pardoning power, since no person properly belonging to one of

the departments can exercise any powers appertaining to either of the others except in

cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . .

. where the pardoning power is conferred on the executive without express or implied

limitations, the grant is exclusive, and the legislature can neither exercise such power

itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof,

. . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any

pardoning power upon the courts it is for that reason unconstitutional and void. But does

it?

In the famous Killitts decision involving an embezzlement case, the Supreme

Court of the United States ruled in 1916 that an order indefinitely suspending sentenced

was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E,

1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an

exhaustive review of the authorities, expressed the opinion of the court that under the

common law the power of the court was limited to temporary suspension and that the

right to suspend sentenced absolutely and permanently was vested in the executive

branch of the government and not in the judiciary. But, the right of Congress to establish

probation by statute was conceded. Said the court through its Chief Justice: ". . . and so

far as the future is concerned, that is, the causing of the imposition of penalties as fixed

to be subject, by probation legislation or such other means as the legislative mind may

devise, to such judicial discretion as may be adequate to enable courts to meet by the

exercise of an enlarged but wise discretion the infinite variations which may be

presented to them for judgment, recourse must be had Congress whose legislative

power on the subject is in the very nature of things adequately complete." (Quoted in

Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation

Association and others to agitate for the enactment by Congress of a federal probation

law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C.

title 18, sec. 724). This was followed by an appropriation to defray the salaries and

expenses of a certain number of probation officers chosen by civil service. (Johnson,

Probation for Juveniles and Adults, p. 14.)

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72

Law. ed., 309), the Supreme Court of the United States, through Chief Justice Taft, held

that when a person sentenced to imprisonment by a district court has begun to serve his

sentence, that court has no power under the Probation Act of March 4, 1925 to grant

him probation even though the term at which sentence was imposed had not yet

expired. In this case of Murray, the constitutionality of the probation Act was not

considered but was assumed. The court traced the history of the Act and quoted from

the report of the Committee on the Judiciary of the United States House of

Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts

exercised a form of probation either, by suspending sentence or by placing the

defendants under state probation officers or volunteers. In this case, however (Ex parte

United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72

Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to

suspend sentenced. In the same opinion the court pointed out the necessity for action

by Congress if the courts were to exercise probation powers in the future . . .

Since this decision was rendered, two attempts have been made to enact

probation legislation. In 1917, a bill was favorably reported by the Judiciary Committee

and passed the House. In 1920, the judiciary Committee again favorably reported a

probation bill to the House, but it was never reached for definite action.

If this bill is enacted into law, it will bring the policy of the Federal government with

reference to its treatment of those convicted of violations of its criminal laws in harmony

with that of the states of the Union. At the present time every state has a probation law,

and in all but twelve states the law applies both to adult and juvenile offenders. (see,

also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior

federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the

Fourth Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under

consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7

F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no

manner to encroach upon the pardoning power of the President. This case will be found

to contain an able and comprehensive review of the law applicable here. It arose under

the act we have to consider, and to it and the authorities cited therein special reference

is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court

of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing

the Probation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and

unequivocal language, pointed to Congress as possessing the requisite power to enact

probation laws, that a federal probation law as actually enacted in 1925, and that the

constitutionality of the Act has been assumed by the Supreme Court of the United

States in 1928 and consistently sustained by the inferior federal courts in a number of

earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the

United States, may legally enact a probation law under its broad power to fix the

punishment of any and all penal offenses. This conclusion is supported by other

authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac.,

698, the court said: "It is clearly within the province of the Legislature to denominate and

define all classes of crime, and to prescribe for each a minimum and maximum

punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S.

E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set punishment

for crime is very broad, and in the exercise of this power the general assembly may

confer on trial judges, if it sees fit, the largest discretion as to the sentence to be

imposed, as to the beginning and end of the punishment and whether it should be

certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455;

95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the

penalties for their violation. Invariably, the legislature has demonstrated the desire to

vest in the courts — particularly the trial courts — large discretion in imposing the

penalties which the law prescribes in particular cases. It is believed that justice can best

be served by vesting this power in the courts, they being in a position to best determine

the penalties which an individual convict, peculiarly circumstanced, should suffer. Thus,

while courts are not allowed to refrain from imposing a sentence merely because, taking

into consideration the degree of malice and the injury caused by the offense, the penalty

provided by law is clearly excessive, the courts being allowed in such case to submit to

the Chief Executive, through the Department of Justice, such statement as it may deem

proper (see art. 5, Revised Penal Code), in cases where both mitigating and

aggravating circumstances are attendant in the commission of a crime and the law

provides for a penalty composed of two indivisible penalties, the courts may allow such

circumstances to offset one another in consideration of their number and importance,

and to apply the penalty according to the result of such compensation. (Art. 63, rule 4,

Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again,

article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine,

within the limits of each periods, in case the penalty prescribed by law contains three

periods, the extent of the evil produced by the crime. In the imposition of fines, the

courts are allowed to fix any amount within the limits established by law, considering not

only the mitigating and aggravating circumstances, but more particularly the wealth or

means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the

same Code provides that "a discretionary penalty shall be imposed" upon a person

under fifteen but over nine years of age, who has not acted without discernment, but

always lower by two degrees at least than that prescribed by law for the crime which he

has committed. Article 69 of the same Code provides that in case of "incomplete self-

defense", i.e., when the crime committed is not wholly excusable by reason of the lack

of some of the conditions required to justify the same or to exempt from criminal liability

in the several cases mentioned in article 11 and 12 of the Code, "the courts shall

impose the penalty in the period which may be deemed proper, in view of the number

and nature of the conditions of exemption present or lacking." And, in case the

commission of what are known as "impossible" crimes, "the court, having in mind the

social danger and the degree of criminality shown by the offender," shall impose upon

him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised

Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive

imprisonment is deducted form the entire term of imprisonment, except in certain cases

expressly mentioned (art. 29); the death penalty is not imposed when the guilty person

is more than seventy years of age, or where upon appeal or revision of the case by the

Supreme Court, all the members thereof are not unanimous in their voting as to the

propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised

Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is

not to be inflicted upon a woman within the three years next following the date of the

sentence or while she is pregnant, or upon any person over seventy years of age (art.

83); and when a convict shall become insane or an imbecile after final sentence has

been pronounced, or while he is serving his sentenced, the execution of said sentence

shall be suspended with regard to the personal penalty during the period of such

insanity or imbecility (art. 79).

But the desire of the legislature to relax what might result in the undue harshness

of the penal laws is more clearly demonstrated in various other enactments, including

the probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No.

4103 and subsequently amended by Act No. 4225, establishing a system of parole

(secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the

law. Section 1 of the law as amended provides; "hereafter, in imposing a prison

sentence for an offenses punished by the Revised Penal Code, or its amendments, the

court shall sentence the accused to an indeterminate sentence the maximum term of

which shall be that which, in view of the attending circumstances, could be properly

imposed under the rules of the said Code, and to a minimum which shall be within the

range of the penalty next lower to that prescribed by the Code for the offense; and if the

offense is punished by any other law, the court shall sentence the accused to an

indeterminate sentence, the maximum term of which shall not exceed the maximum

fixed by said law and the minimum shall not be less than the minimum term prescribed

by the same." Certain classes of convicts are, by section 2 of the law, excluded from the

operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act

No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original

Act and section 1 of the amendatory Act have become article 80 of the Revised Penal

Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended

by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested

the intention of the legislature to "humanize" the penal laws. It allows, in effect, the

modification in particular cases of the penalties prescribed by law by permitting the

suspension of the execution of the judgment in the discretion of the trial court, after due

hearing and after investigation of the particular circumstances of the offenses, the

criminal record, if any, of the convict, and his social history. The Legislature has in

reality decreed that in certain cases no punishment at all shall be suffered by the convict

as long as the conditions of probation are faithfully observed. It this be so, then, it

cannot be said that the Probation Act comes in conflict with the power of the Chief

Executive to grant pardons and reprieves, because, to use the language of the

Supreme Court of New Mexico, "the element of punishment or the penalty for the

commission of a wrong, while to be declared by the courts as a judicial function under

and within the limits of law as announced by legislative acts, concerns solely the

procedure and conduct of criminal causes, with which the executive can have nothing to

do." (Ex parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843),

the court upheld the constitutionality of the Georgia probation statute against the

contention that it attempted to delegate to the courts the pardoning power lodged by the

constitution in the governor alone is vested with the power to pardon after final sentence

has been imposed by the courts, the power of the courts to imposed any penalty which

may be from time to time prescribed by law and in such manner as may be defined

cannot be questioned."

We realize, of course, the conflict which the American cases disclose. Some

cases hold it unlawful for the legislature to vest in the courts the power to suspend the

operation of a sentenced, by probation or otherwise, as to do so would encroach upon

the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356;

46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield

vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla.,

108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac.,

650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep.,

230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150

S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898],

104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne

vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19

N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)

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

590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C.

C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L.

R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928],

89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300

Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People

[1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369,

370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise

[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E.,

179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People

vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125

Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac.,

525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848;

State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne

[1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A.,

1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894],

141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel.

Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich

[1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y.

Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte

Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C.,

455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E.,

6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State

[1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S.

W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs.

State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex.

Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162

S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall

[1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E.,

460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs.

Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to

follow this long catena of authorities holding that the courts may be legally authorized by

the legislature to suspend sentence by the establishment of a system of probation

however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561;

206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute

enacted in 1921 which provided for the suspension of the execution of a sentence until

otherwise ordered by the court, and required that the convicted person be placed under

the charge of a parole or peace officer during the term of such suspension, on such

terms as the court may determine, was held constitutional and as not giving the court a

power in violation of the constitutional provision vesting the pardoning power in the chief

executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are

actually district and different from each other, both in origin and in nature. In People ex

rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L.

R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said:

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

pardons, as understood when the constitution was adopted, are totally distinct and

different in their nature. The former was always a part of the judicial power; the latter

was always a part of the executive power. The suspension of the sentence simply

postpones the judgment of the court temporarily or indefinitely, but the conviction and

liability following it, and the civil disabilities, remain and become operative when

judgment is rendered. A pardon reaches both the punishment prescribed for the offense

and the guilt of the offender. It releases the punishment, and blots out of existence the

guilt, so that in the eye of the law, the offender is as innocent as if he had never

committed the offense. It removes the penalties and disabilities, and restores him to all

his civil rights. It makes him, as it were, a new man, and gives him a new credit and

capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80

U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly familiar with

the principles governing the power to grant pardons, and it was conferred by these

instruments upon the executive with full knowledge of the law upon the subject, and the

words of the constitution were used to express the authority formerly exercised by the

English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18

How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any

part of the judicial functions to suspend sentence, and it was never intended that the

authority to grant reprieves and pardons should abrogate, or in any degree restrict, the

exercise of that power in regard to its own judgments, that criminal courts has so long

maintained. The two powers, so distinct and different in their nature and character, were

still left separate and distinct, the one to be exercised by the executive, and the other by

the judicial department. We therefore conclude that a statute which, in terms, authorizes

courts of criminal jurisdiction to suspend sentence in certain cases after conviction, — a

power inherent in such courts at common law, which was understood when the

constitution was adopted to be an ordinary judicial function, and which, ever since its

adoption, has been exercised of legislative power under the constitution. It does not

encroach, in any just sense, upon the powers of the executive, as they have been

understood and practiced from the earliest times. (Quoted with approval in Directors of

Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,

concurring, at pp. 294, 295.)

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

not finally and completely exonerated. He is not exempt from the entire punishment

which the law inflicts. Under the Probation Act, the probationer's case is not terminated

by the mere fact that he is placed on probation. Section 4 of the Act provides that the

probation may be definitely terminated and the probationer finally discharged from

supervision only after the period of probation shall have been terminated and the

probation officer shall have submitted a report, and the court shall have found that the

probationer has complied with the conditions of probation. The probationer, then, during

the period of probation, remains in legal custody — subject to the control of the

probation officer and of the court; and, he may be rearrested upon the non-fulfillment of

the conditions of probation and, when rearrested, may be committed to prison to serve

the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)

The probation described in the act is not pardon. It is not complete liberty, and

may be far from it. It is really a new mode of punishment, to be applied by the judge in a

proper case, in substitution of the imprisonment and find prescribed by the criminal

laws. For this reason its application is as purely a judicial act as any other sentence

carrying out the law deemed applicable to the offense. The executive act of pardon, on

the contrary, is against the criminal law, which binds and directs the judges, or rather is

outside of and above it. There is thus no conflict with the pardoning power, and no

possible unconstitutionality of the Probation Act for this cause. (Archer vs. Snook

[1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of

the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.],

1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in

support of their contention that the power to grant pardons and reprieves, having been

vested exclusively upon the Chief Executive by the Jones Law, may not be conferred by

the legislature upon the courts by means of probation law authorizing the indefinite

judicial suspension of sentence. We have examined that case and found that although

the Court of Criminal Appeals of Texas held that the probation statute of the state in

terms conferred on the district courts the power to grant pardons to persons convicted

of crime, it also distinguished between suspensions sentence on the one hand, and

reprieve and commutation of sentence on the other. Said the court, through Harper, J.:

That the power to suspend the sentence does not conflict with the power of the

Governor to grant reprieves is settled by the decisions of the various courts; it being

held that the distinction between a "reprieve" and a suspension of sentence is that a

reprieve postpones the execution of the sentence to a day certain, whereas a

suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re

Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp.

6115, 6116. This law cannot be hold in conflict with the power confiding in the Governor

to grant commutations of punishment, for a commutations is not but to change the

punishment assessed to a less punishment.

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

the Supreme Court of Montana had under consideration the validity of the adult

probation law of the state enacted in 1913, now found in sections 12078-12086,

Revised Codes of 1921. The court held the law valid as not impinging upon the

pardoning power of the executive. In a unanimous decision penned by Justice

Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood

meaning at the time our Constitution was adopted, and no one of them was intended to

comprehend the suspension of the execution of the judgment as that phrase is

employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from the

power intrusted with the execution of the laws which exempts the individual on whom it

is bestowed from the punishment the law inflicts for a crime he has committed (United

States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs.

Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex

County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71).

"Commutation" is a remission of a part of the punishment; a substitution of a less

penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep.,

563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is

the withholding of the sentence for an interval of time (4 Blackstone's Commentaries,

394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a

temporary suspension of execution (Butler vs. State, 97 Ind., 373).

Few adjudicated cases are to be found in which the validity of a statute similar to

our section 12078 has been determined; but the same objections have been urged

against parole statutes which vest the power to parole in persons other than those to

whom the power of pardon is granted, and these statutes have been upheld quite

uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State

(130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See,

also, 20 R. C. L., 524.)

We conclude that the Probation Act does not conflict with the pardoning power of

the Executive. The pardoning power, in respect to those serving their probationary

sentences, remains as full and complete as if the Probation Law had never been

enacted. The President may yet pardon the probationer and thus place it beyond the

power of the court to order his rearrest and imprisonment. (Riggs vs. United States

[1926],

14 F. [2d], 5, 7.)

2. But while the Probation Law does not encroach upon the pardoning power of

the executive and is not for that reason void, does section 11 thereof constitute, as

contended, an undue delegation of legislative power?

Under the constitutional system, the powers of government are distributed among

three coordinate and substantially independent organs: the legislative, the executive

and the judicial. Each of these departments of the government derives its authority from

the Constitution which, in turn, is the highest expression of popular will. Each has

exclusive cognizance of the matters within its jurisdiction, and is supreme within its own

sphere.

The power to make laws — the legislative power — is vested in a bicameral

Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the

Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature

or the National Assembly may not escape its duties and responsibilities by delegating

that power to any other body or authority. Any attempt to abdicate the power is

unconstitutional and void, on the principle that potestas delegata non delegare potest.

This principle is said to have originated with the glossators, was introduced into English

law through a misreading of Bracton, there developed as a principle of agency, was

established by Lord Coke in the English public law in decisions forbidding the delegation

of judicial power, and found its way into America as an enlightened principle of free

government. It has since become an accepted corollary of the principle of separation of

powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is

that of Locke, namely: "The legislative neither must nor can transfer the power of

making laws to anybody else, or place it anywhere but where the people have." (Locke

on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following

oft-quoted language: "One of the settled maxims in constitutional law is, that the power

conferred upon the legislature to make laws cannot be delegated by that department to

any other body or authority. Where the sovereign power of the state has located the

authority, there it must remain; and by the constitutional agency alone the laws must be

made until the Constitution itself is charged. The power to whose judgment, wisdom,

and patriotism this high prerogative has been intrusted cannot relieve itself of the

responsibilities by choosing other agencies upon which the power shall be devolved,

nor can it substitute the judgment, wisdom, and patriotism of any other body for those to

which alone the people have seen fit to confide this sovereign trust." (Cooley on

Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs.

Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that

such a delegated power constitutes not only a right but a duty to be performed by the

delegate by the instrumentality of his own judgment acting immediately upon the matter

of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra,

at p. 330.)

The rule, however, which forbids the delegation of legislative power is not

absolute and inflexible. It admits of exceptions. An exceptions sanctioned by

immemorial practice permits the central legislative body to delegate legislative powers

to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs.

Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32

Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a

cardinal principle of our system of government, that local affairs shall be managed by

local authorities, and general affairs by the central authorities; and hence while the rule

is also fundamental that the power to make laws cannot be delegated, the creation of

the municipalities exercising local self government has never been held to trench upon

that rule. Such legislation is not regarded as a transfer of general legislative power, but

rather as the grant of the authority to prescribed local regulations, according to

immemorial practice, subject of course to the interposition of the superior in cases of

necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is

powered to delegate legislative power to such agencies in the territories of the United

States as it may select. A territory stands in the same relation to Congress as a

municipality or city to the state government. (United States vs. Heinszen [1907], 206 U.

S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United

States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas.,

697.) Courts have also sustained the delegation of legislative power to the people at

large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R.

C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann.

Cas., 1914C, 616). However, the question of whether or not a state has ceased to be

republican in form because of its adoption of the initiative and referendum has been

held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon

[1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the

constitutionality of such laws has been looked upon with favor by certain progressive

courts, the sting of the decisions of the more conservative courts has been pretty well

drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113;

Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A.

[N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also,

legislative power may be delegated by the Constitution itself. Section 14, paragraph 2,

of article VI of the Constitution of the Philippines provides that "The National Assembly

may by law authorize the President, subject to such limitations and restrictions as it may

impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage

and wharfage dues." And section 16 of the same article of the Constitution provides that

"In times of war or other national emergency, the National Assembly may by law

authorize the President, for a limited period and subject to such restrictions as it may

prescribed, to promulgate rules and regulations to carry out a declared national policy."

It is beyond the scope of this decision to determine whether or not, in the absence of the

foregoing constitutional provisions, the President could be authorized to exercise the

powers thereby vested in him. Upon the other hand, whatever doubt may have existed

has been removed by the Constitution itself.

The case before us does not fall under any of the exceptions hereinabove

mentioned.

The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial boards

have provided for the salary of a probation officer at rates not lower than those now

provided for provincial fiscals. Said probation officer shall be appointed by the Secretary

of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or

not, it is usual to inquire whether the statute was complete in all its terms and provisions

when it left the hands of the legislature so that nothing was left to the judgment of any

other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States

vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it

held an act of the legislature void in so far as it undertook to authorize the Governor-

General, in his discretion, to issue a proclamation fixing the price of rice and to make

the sale of it in violation of the proclamation a crime. (See and cf. Compañia General de

Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general

rule, however, is limited by another rule that to a certain extent matters of detail may be

left to be filled in by rules and regulations to be adopted or promulgated by executive

officers and administrative boards. (6 R. C. L., pp. 177-179.)

For the purpose of Probation Act, the provincial boards may be regarded as

administrative bodies endowed with power to determine when the Act should take effect

in their respective provinces. They are the agents or delegates of the legislature in this

respect. The rules governing delegation of legislative power to administrative and

executive officers are applicable or are at least indicative of the rule which should be

here adopted. An examination of a variety of cases on delegation of power to

administrative bodies will show that the ratio decidendi is at variance but, it can be

broadly asserted that the rationale revolves around the presence or absence of a

standard or rule of action — or the sufficiency thereof — in the statute, to aid the

delegate in exercising the granted discretion. In some cases, it is held that the standard

is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a

rule, an act of the legislature is incomplete and hence invalid if it does not lay down any

rule or definite standard by which the administrative officer or board may be guided in

the exercise of the discretionary powers delegated to it. (See Schecter vs. United States

[1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People

ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500

and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at

bar, what rules are to guide the provincial boards in the exercise of their discretionary

power to determine whether or not the Probation Act shall apply in their respective

provinces? What standards are fixed by the Act? We do not find any and none has been

pointed to us by the respondents. The probation Act does not, by the force of any of its

provisions, fix and impose upon the provincial boards any standard or guide in the

exercise of their discretionary power. What is granted, if we may use the language of

Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which

enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act,

the legislature does not seemingly on its own authority extend the benefits of the

Probation Act to the provinces but in reality leaves the entire matter for the various

provincial boards to determine. In other words, the provincial boards of the various

provinces are to determine for themselves, whether the Probation Law shall apply to

their provinces or not at all. The applicability and application of the Probation Act are

entirely placed in the hands of the provincial boards. If the provincial board does not

wish to have the Act applied in its province, all that it has to do is to decline to

appropriate the needed amount for the salary of a probation officer. The plain language

of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual

surrender of legislative power to the provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of power to

make the law, which necessarily involves a discretion as to what it shall be, and

conferring an authority or discretion as to its execution, to be exercised under and in

pursuance of the law. The first cannot be done; to the latter no valid objection can be

made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88.

See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the

decision of this court in Municipality of Cardona vs. Municipality of Binangonan ([1917],

36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs.

Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the

validity of the law conferring upon the Governor-General authority to adjust provincial

and municipal boundaries. In the second case, this court held it lawful for the legislature

to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be

selected by the provincial governor and approved by the provincial board. In the third

case, it was held proper for the legislature to vest in the Governor-General authority to

suspend or not, at his discretion, the prohibition of the importation of the foreign cattle,

such prohibition to be raised "if the conditions of the country make this advisable or if

deceased among foreign cattle has ceased to be a menace to the agriculture and

livestock of the lands."

It should be observed that in the case at bar we are not concerned with the

simple transference of details of execution or the promulgation by executive or

administrative officials of rules and regulations to carry into effect the provisions of a

law. If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias

[1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of

Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U.

S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39

Phil., 660.)

It is connected, however, that a legislative act may be made to the effect as law

after it leaves the hands of the legislature. It is true that laws may be made effective on

certain contingencies, as by proclamation of the executive or the adoption by the people

of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations,

8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253),

the Supreme Court of the United State ruled that the legislature may delegate a power

not legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire

Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain

facts is such a power which may be delegated. There is nothing essentially legislative in

ascertaining the existence of facts or conditions as the basis of the taking into effect of a

law. That is a mental process common to all branches of the government. (Dowling vs.

Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97

N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field

vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding

the apparent tendency, however, to relax the rule prohibiting delegation of legislative

authority on account of the complexity arising from social and economic forces at work

in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The

Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,

"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147,

152), the orthodox pronouncement of Judge Cooley in his work on Constitutional

Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the

United States in the following language — speaking of declaration of legislative power

to administrative agencies: "The principle which permits the legislature to provide that

the administrative agent may determine when the circumstances are such as require

the application of a law is defended upon the ground that at the time this authority is

granted, the rule of public policy, which is the essence of the legislative act, is

determined by the legislature. In other words, the legislature, as it its duty to do,

determines that, under given circumstances, certain executive or administrative action is

to be taken, and that, under other circumstances, different of no action at all is to be

taken. What is thus left to the administrative official is not the legislative determination of

what public policy demands, but simply the ascertainment of what the facts of the case

require to be done according to the terms of the law by which he is governed."

(Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller

vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971,

974), it was said: "The efficiency of an Act as a declaration of legislative will must, of

course, come from Congress, but the ascertainment of the contingency upon which the

Act shall take effect may be left to such agencies as it may designate." (See, also, 12

C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343,

258.) The legislature, then may provide that a contingencies leaving to some other

person or body the power to determine when the specified contingencies has arisen.

But, in the case at bar, the legislature has not made the operation of the Prohibition Act

contingent upon specified facts or conditions to be ascertained by the provincial board.

It leaves, as we have already said, the entire operation or non-operation of the law upon

the provincial board. the discretion vested is arbitrary because it is absolute and

unlimited. A provincial board need not investigate conditions or find any fact, or await

the happening of any specified contingency. It is bound by no rule, — limited by no

principle of expendiency announced by the legislature. It may take into consideration

certain facts or conditions; and, again, it may not. It may have any purpose or no

purpose at all. It need not give any reason whatsoever for refusing or failing to

appropriate any funds for the salary of a probation officer. This is a matter which rest

entirely at its pleasure. The fact that at some future time — we cannot say when — the

provincial boards may appropriate funds for the salaries of probation officers and thus

put the law into operation in the various provinces will not save the statute. The time of

its taking into effect, we reiterate, would yet be based solely upon the will of the

provincial boards and not upon the happening of a certain specified contingency, or

upon the ascertainment of certain facts or conditions by a person or body other than

legislature itself.

The various provincial boards are, in practical effect, endowed with the power of

suspending the operation of the Probation Law in their respective provinces. In some

jurisdiction, constitutions provided that laws may be suspended only by the legislature

or by its authority. Thus, section 28, article I of the Constitution of Texas provides that

"No power of suspending laws in this state shall be exercised except by the legislature";

and section 26, article I of the Constitution of Indiana provides "That the operation of the

laws shall never be suspended, except by authority of the General Assembly." Yet, even

provisions of this sort do not confer absolute power of suspension upon the legislature.

While it may be undoubted that the legislature may suspend a law, or the execution or

operation of a law, a law may not be suspended as to certain individuals only, leaving

the law to be enjoyed by others. The suspension must be general, and cannot be made

for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass.,

396; 6 Am. Dec., 174, 177, 178), it was said:

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

commonwealth, it is declared that the power of suspending the laws, or the execution of

the laws, ought never to be exercised but by the legislature, or by authority derived from

it, to be exercised in such particular cases only as the legislature shall expressly provide

for. Many of the articles in that declaration of rights were adopted from the Magna

Charta of England, and from the bill of rights passed in the reign of William and Mary.

The bill of rights contains an enumeration of the oppressive acts of James II, tending to

subvert and extirpate the protestant religion, and the laws and liberties of the kingdom;

and the first of them is the assuming and exercising a power of dispensing with and

suspending the laws, and the execution of the laws without consent of parliament. The

first article in the claim or declaration of rights contained in the statute is, that the

exercise of such power, by legal authority without consent of parliament, is illegal. In the

tenth section of the same statute it is further declared and enacted, that "No

dispensation by non obstante of or to any statute, or part thereof, should be allowed; but

the same should be held void and of no effect, except a dispensation be allowed of in

such statute." There is an implied reservation of authority in the parliament to exercise

the power here mentioned; because, according to the theory of the English Constitution,

"that absolute despotic power, which must in all governments reside somewhere," is

intrusted to the parliament: 1 Bl. Com., 160.

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

sovereign and absolute power resides in the people; and the legislature can only

exercise what is delegated to them according to the constitution. It is obvious that the

exercise of the power in question would be equally oppressive to the subject, and

subversive of his right to protection, "according to standing laws," whether exercised by

one man or by a number of men. It cannot be supposed that the people when adopting

this general principle from the English bill of rights and inserting it in our constitution,

intended to bestow by implication on the general court one of the most odious and

oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the

first principles of civil liberty and natural justice, and to the spirit of our constitution and

laws, that any one citizen should enjoy privileges and advantages which are denied to

all others under like circumstances; or that ant one should be subject to losses,

damages, suits, or actions from which all others under like circumstances are

exempted.

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

of any dog liable to the owner of domestic animals wounded by it for the damages

without proving a knowledge of it vicious disposition. By a provision of the act, power

was given to the board of supervisors to determine whether or not during the current

year their county should be governed by the provisions of the act of which that section

constituted a part. It was held that the legislature could not confer that power. The court

observed that it could no more confer such a power than to authorize the board of

supervisors of a county to abolish in such county the days of grace on commercial

paper, or to suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis.,

504.) A similar statute in Missouri was held void for the same reason in State vs. Field

([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road

system contained a provision that "if the county court of any county should be of opinion

that the provisions of the act should not be enforced, they might, in their discretion,

suspend the operation of the same for any specified length of time, and thereupon the

act should become inoperative in such county for the period specified in such order; and

thereupon order the roads to be opened and kept in good repair, under the laws

theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the

inconsistent provisions of a former act, and yet it is left to the county court to say which

act shall be enforce in their county. The act does not submit the question to the county

court as an original question, to be decided by that tribunal, whether the act shall

commence its operation within the county; but it became by its own terms a law in every

county not excepted by name in the act. It did not, then, require the county court to do

any act in order to give it effect. But being the law in the county, and having by its

provisions superseded and abrogated the inconsistent provisions of previous laws, the

county court is . . . empowered, to suspend this act and revive the repealed provisions

of the former act. When the question is before the county court for that tribunal to

determine which law shall be in force, it is urge before us that the power then to be

exercised by the court is strictly legislative power, which under our constitution, cannot

be delegated to that tribunal or to any other body of men in the state. In the present

case, the question is not presented in the abstract; for the county court of Saline county,

after the act had been for several months in force in that county, did by order suspend

its operation; and during that suspension the offense was committed which is the

subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32

S., 687.)

True, the legislature may enact laws for a particular locality different from those

applicable to other localities and, while recognizing the force of the principle

hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of

the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option

laws thus sustained treat of subjects purely local in character which should receive

different treatment in different localities placed under different circumstances. "They

relate to subjects which, like the retailing of intoxicating drinks, or the running at large of

cattle in the highways, may be differently regarded in different localities, and they are

sustained on what seems to us the impregnable ground, that the subject, though not

embraced within the ordinary powers of municipalities to make by-laws and ordinances,

is nevertheless within the class of public regulations, in respect to which it is proper that

the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p.

148.) So that, while we do not deny the right of local self-government and the propriety

of leaving matters of purely local concern in the hands of local authorities or for the

people of small communities to pass upon, we believe that in matters of general of

general legislation like that which treats of criminals in general, and as regards the

general subject of probation, discretion may not be vested in a manner so unqualified

and absolute as provided in Act No. 4221. True, the statute does not expressly state

that the provincial boards may suspend the operation of the Probation Act in particular

provinces but, considering that, in being vested with the authority to appropriate or not

the necessary funds for the salaries of probation officers, they thereby are given

absolute discretion to determine whether or not the law should take effect or operate in

their respective provinces, the provincial boards are in reality empowered by the

legislature to suspend the operation of the Probation Act in particular provinces, the Act

to be held in abeyance until the provincial boards should decide otherwise by

appropriating the necessary funds. The validity of a law is not tested by what has been

done but by what may be done under its provisions. (Walter E. Olsen & Co. vs.

Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)

It in conceded that a great deal of latitude should be granted to the legislature not

only in the expression of what may be termed legislative policy but in the elaboration

and execution thereof. "Without this power, legislation would become oppressive and

yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular

government lives because of the inexhaustible reservoir of power behind it. It is

unquestionable that the mass of powers of government is vested in the representatives

of the people and that these representatives are no further restrained under our system

than by the express language of the instrument imposing the restraint, or by particular

provisions which by clear intendment, have that effect. (Angara vs. Electoral

Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz.,

1317.) But, it should be borne in mind that a constitution is both a grant and a limitation

of power and one of these time-honored limitations is that, subject to certain exceptions,

legislative power shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and

unlawful delegation of legislative authority to the provincial boards and is, for this

reason, unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of

Rights which prohibits the denial to any person of the equal protection of the laws (Act.

III, sec. 1 subsec. 1. Constitution of the Philippines.)

This basic individual right sheltered by the Constitution is a restraint on all the tree

grand departments of our government and on the subordinate instrumentalities and

subdivision thereof, and on many constitutional power, like the police power, taxation

and eminent domain. The equal protection of laws, sententiously observes the Supreme

Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs.

Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs.

North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course,

what may be regarded as a denial of the equal protection of the laws in a question not

always easily determined. No rule that will cover every case can be formulated.

(Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46

Law. ed., 679.) Class legislation discriminating against some and favoring others in

prohibited. But classification on a reasonable basis, and nor made arbitrarily or

capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75;

32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law.

ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.)

The classification, however, to be reasonable must be based on substantial distinctions

which make real differences; it must be germane to the purposes of the law; it must not

be limited to existing conditions only, and must apply equally to each member of the

class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A.,

649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150;

Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377;

31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough

[1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs.

Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas.,

1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the

unwarranted delegation of legislative power, although perhaps this is not necessarily the

result in every case. Adopting the example given by one of the counsel for the

petitioners in the course of his oral argument, one province may appropriate the

necessary fund to defray the salary of a probation officer, while another province may

refuse or fail to do so. In such a case, the Probation Act would be in operation in the

former province but not in the latter. This means that a person otherwise coming within

the purview of the law would be liable to enjoy the benefits of probation in one province

while another person similarly situated in another province would be denied those same

benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the

provincial boards to appropriate the necessary funds for the salaries of the probation

officers in their respective provinces, in which case no inequality would result for the

obvious reason that probation would be in operation in each and every province by the

affirmative action of appropriation by all the provincial boards. On that hypothesis, every

person coming within the purview of the Probation Act would be entitled to avail of the

benefits of the Act. Neither will there be any resulting inequality if no province, through

its provincial board, should appropriate any amount for the salary of the probation officer

— which is the situation now — and, also, if we accept the contention that, for the

purpose of the Probation Act, the City of Manila should be considered as a province and

that the municipal board of said city has not made any appropriation for the salary of the

probation officer. These different situations suggested show, indeed, that while

inequality may result in the application of the law and in the conferment of the benefits

therein provided, inequality is not in all cases the necessary result. But whatever may

be the case, it is clear that in section 11 of the Probation Act creates a situation in which

discrimination and inequality are permitted or allowed. There are, to be sure, abundant

authorities requiring actual denial of the equal protection of the law before court should

assume the task of setting aside a law vulnerable on that score, but premises and

circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits

of the denial of the equal protection of the law and is on that account bad. We see no

difference between a law which permits of such denial. A law may appear to be fair on

its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination,

it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876],

292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law.

ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware

[1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703;

28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220;

Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed.,

1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed.,

Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62

Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of

their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct.

Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl.,

944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of

the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup.

Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94

Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104;

36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may

said Act be in force in one or several provinces and not be in force in other provinces,

but one province may appropriate for the salary of the probation officer of a given year

— and have probation during that year — and thereafter decline to make further

appropriation, and have no probation is subsequent years. While this situation goes

rather to the abuse of discretion which delegation implies, it is here indicated to show

that the Probation Act sanctions a situation which is intolerable in a government of laws,

and to prove how easy it is, under the Act, to make the guaranty of the equality clause

but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150

154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net

Great reliance is placed by counsel for the respondents on the case of Ocampo

vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme

Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to

uphold the contention that there was a denial of the equal protection of the laws

because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S.,

220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial

uniformity. It should be observed, however, that this case concerns the right to

preliminary investigations in criminal cases originally granted by General Orders No. 58.

No question of legislative authority was involved and the alleged denial of the equal

protection of the laws was the result of the subsequent enactment of Act No. 612,

amending the charter of the City of Manila (Act No. 813) and providing in section 2

thereof that "in cases triable only in the court of first instance of the City of Manila, the

defendant . . . shall not be entitled as of right to a preliminary examination in any case

where the prosecuting attorney, after a due investigation of the facts . . . shall have

presented an information against him in proper form . . . ." Upon the other hand, an

analysis of the arguments and the decision indicates that the investigation by the

prosecuting attorney — although not in the form had in the provinces — was considered

a reasonable substitute for the City of Manila, considering the peculiar conditions of the

city as found and taken into account by the legislature itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has

reference to a situation where the constitution of Missouri permits appeals to the

Supreme Court of the state from final judgments of any circuit court, except those in

certain counties for which counties the constitution establishes a separate court of

appeals called St. Louis Court of Appeals. The provision complained of, then, is found in

the constitution itself and it is the constitution that makes the apportionment of territorial

jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and

void because it is also repugnant to equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons

already stated, the next inquiry is whether or not the entire Act should be avoided.

In seeking the legislative intent, the presumption is against any mutilation of a

statute, and the courts will resort to elimination only where an unconstitutional provision

is interjected into a statute otherwise valid, and is so independent and separable that its

removal will leave the constitutional features and purposes of the act substantially

unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A.,

485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240;

73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir

([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning partial

invalidity of statutes in the following language:

. . . where part of the a statute is void, as repugnant to the Organic Law, while

another part is valid, the valid portion, if separable from the valid, may stand and be

enforced. But in order to do this, the valid portion must be in so far independent of the

invalid portion that it is fair to presume that the Legislative would have enacted it by

itself if they had supposed that they could not constitutionally enact the other. (Mutual

Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of

Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough

must remain to make a complete, intelligible, and valid statute, which carries out the

legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions

must be eliminated without causing results affecting the main purpose of the Act, in a

manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla.,

617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N.

S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.

Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs.

Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalid part of a

statute can have no legal force or efficacy for any purpose whatever, and what remains

must express the legislative will, independently of the void part, since the court has no

power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839;

Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and

Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6

R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act applicable

only in those provinces in which the respective provincial boards provided for the

salaries of probation officers were inoperative on constitutional grounds, the remainder

of the Act would still be valid and may be enforced. We should be inclined to accept the

suggestions but for the fact that said section is, in our opinion, is inseparably linked with

the other portions of the Act that with the elimination of the section what would be left is

the bare idealism of the system, devoid of any practical benefit to a large number of

people who may be deserving of the intended beneficial result of that system. The clear

policy of the law, as may be gleaned from a careful examination of the whole context, is

to make the application of the system dependent entirely upon the affirmative action of

the different provincial boards through appropriation of the salaries for probation officers

at rates not lower than those provided for provincial fiscals. Without such action on the

part of the various boards, no probation officers would be appointed by the Secretary of

Justice to act in the provinces. The Philippines is divided or subdivided into provinces

and it needs no argument to show that if not one of the provinces — and this is the

actual situation now — appropriate the necessary fund for the salary of a probation

officer, probation under Act No. 4221 would be illusory. There can be no probation

without a probation officer. Neither can there be a probation officer without the probation

system.

Section 2 of the Acts provides that the probation officer shall supervise and visit

the probationer. Every probation officer is given, as to the person placed in probation

under his care, the powers of the police officer. It is the duty of the probation officer to

see that the conditions which are imposed by the court upon the probationer under his

care are complied with. Among those conditions, the following are enumerated in

section 3 of the Act:

That the probationer (a) shall indulge in no injurious or vicious habits;

(b) Shall avoid places or persons of disreputable or harmful character;

(c) Shall report to the probation officer as directed by the court or probation officers;

(d) Shall permit the probation officer to visit him at reasonable times at his place of

abode or elsewhere;

(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer

concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g)

Shall remain or reside within a specified place or locality;

(f) Shall make reparation or restitution to the aggrieved parties for actual damages or

losses caused by his offense;

(g) Shall comply with such orders as the court may from time to time make; and

(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,

promulgated in accordance with law.

The court is required to notify the probation officer in writing of the period and

terms of probation. Under section 4, it is only after the period of probation, the

submission of a report of the probation officer and appropriate finding of the court that

the probationer has complied with the conditions of probation that probation may be

definitely terminated and the probationer finally discharged from supervision. Under

section 5, if the court finds that there is non-compliance with said conditions, as

reported by the probation officer, it may issue a warrant for the arrest of the probationer

and said probationer may be committed with or without bail. Upon arraignment and after

an opportunity to be heard, the court may revoke, continue or modify the probation, and

if revoked, the court shall order the execution of the sentence originally imposed.

Section 6 prescribes the duties of probation officers: "It shall be the duty of every

probation officer to furnish to all persons placed on probation under his supervision a

statement of the period and conditions of their probation, and to instruct them

concerning the same; to keep informed concerning their conduct and condition; to aid

and encourage them by friendly advice and admonition, and by such other measures,

not inconsistent with the conditions imposed by court as may seem most suitable, to

bring about improvement in their conduct and condition; to report in writing to the court

having jurisdiction over said probationers at least once every two months concerning

their conduct and condition; to keep records of their work; make such report as are

necessary for the information of the Secretary of Justice and as the latter may require;

and to perform such other duties as are consistent with the functions of the probation

officer and as the court or judge may direct. The probation officers provided for in this

Act may act as parole officers for any penal or reformatory institution for adults when so

requested by the authorities thereof, and, when designated by the Secretary of Justice

shall act as parole officer of persons released on parole under Act Number Forty-one

Hundred and Three, without additional compensation."

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

appointed in the provinces under section 10 of Act which provides as follows:

There is hereby created in the Department of Justice and subject to its

supervision and control, a Probation Office under the direction of a Chief Probation

Officer to be appointed by the Governor-General with the advise and consent of the

Senate who shall receive a salary of four eight hundred pesos per annum. To carry out

this Act there is hereby appropriated out of any funds in the Insular Treasury not

otherwise appropriated, the sum of fifty thousand pesos to be disbursed by the

Secretary of Justice, who is hereby authorized to appoint probation officers and the

administrative personnel of the probation officer under civil service regulations from

among those who possess the qualifications, training and experience prescribed by the

Bureau of Civil Service, and shall fix the compensation of such probation officers and

administrative personnel until such positions shall have been included in the

Appropriation Act.

But the probation officers and the administrative personnel referred to in the

foregoing section are clearly not those probation officers required to be appointed for

the provinces under section 11. It may be said, reddendo singula singulis, that the

probation officers referred to in section 10 above-quoted are to act as such, not in the

various provinces, but in the central office known as the Probation Office established in

the Department of Justice, under the supervision of the Chief Probation Officer. When

the law provides that "the probation officer" shall investigate and make reports to the

court (secs. 1 and 4); that "the probation officer" shall supervise and visit the

probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer

officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d),

shall truthfully answer any reasonable inquiries on the part of "the probation officer"

concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the

probation officer" in writing of the period and terms of probation (sec. 3, last par.), it

means the probation officer who is in charge of a particular probationer in a particular

province. It never could have been intention of the legislature, for instance, to require

the probationer in Batanes, to report to a probationer officer in the City of Manila, or to

require a probation officer in Manila to visit the probationer in the said province of

Batanes, to place him under his care, to supervise his conduct, to instruct him

concerning the conditions of his probation or to perform such other functions as are

assigned to him by law.

That under section 10 the Secretary of Justice may appoint as many probation

officers as there are provinces or groups of provinces is, of course possible. But this

would be arguing on what the law may be or should be and not on what the law is.

Between is and ought there is a far cry. The wisdom and propriety of legislation is not

for us to pass upon. We may think a law better otherwise than it is. But much as has

been said regarding progressive interpretation and judicial legislation we decline to

amend the law. We are not permitted to read into the law matters and provisions which

are not there. Not for any purpose — not even to save a statute from the doom of

invalidity.

Upon the other hand, the clear intention and policy of the law is not to make the

Insular Government defray the salaries of probation officers in the provinces but to

make the provinces defray them should they desire to have the Probation Act apply

thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to

be applied, among other things, for the salaries of probation officers in the central office

at Manila. These probation officers are to receive such compensations as the Secretary

of Justice may fix "until such positions shall have been included in the Appropriation

Act". It was the intention of the legislature to empower the Secretary of Justice to fix the

salaries of the probation officers in the provinces or later on to include said salaries in

an appropriation act. Considering, further, that the sum of P50,000 appropriated in

section 10 is to cover, among other things, the salaries of the administrative personnel

of the Probation Office, what would be left of the amount can hardly be said to be

sufficient to pay even nominal salaries to probation officers in the provinces. We take

judicial notice of the fact that there are 48 provinces in the Philippines and we do not

think it is seriously contended that, with the fifty thousand pesos appropriated for the

central office, there can be in each province, as intended, a probation officer with a

salary not lower than that of a provincial fiscal. If this a correct, the contention that

without section 11 of Act No. 4221 said act is complete is an impracticable thing under

the remainder of the Act, unless it is conceded that in our case there can be a system of

probation in the provinces without probation officers.

Probation as a development of a modern penology is a commendable system.

Probation laws have been enacted, here and in other countries, to permit what modern

criminologist call the "individualization of the punishment", the adjustment of the penalty

to the character of the criminal and the circumstances of his particular case. It provides

a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed

that, in any cases, convicts may be reformed and their development into hardened

criminals aborted. It, therefore, takes advantage of an opportunity for reformation and

avoids imprisonment so long as the convicts gives promise of reform. (United States vs.

Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep.,

146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and

aim. The benefit to the individual convict is merely incidental. But while we believe that

probation is commendable as a system and its implantation into the Philippines should

be welcomed, we are forced by our inescapable duty to set the law aside because of

the repugnancy to our fundamental law.

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

aspects presented by able counsel for both parties, as well in their memorandums as in

their oral argument. We have examined the cases brought to our attention, and others

we have been able to reach in the short time at our command for the study and

deliberation of this case. In the examination of the cases and in then analysis of the

legal principles involved we have inclined to adopt the line of action which in our

opinion, is supported better reasoned authorities and is more conducive to the general

welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of

authorities, we have declined to be bound by certain adjudicated cases brought to our

attention, except where the point or principle is settled directly or by clear implication by

the more authoritative pronouncements of the Supreme Court of the United States. This

line of approach is justified because:

(a) The constitutional relations between the Federal and the State governments of the

United States and the dual character of the American Government is a situation which

does not obtain in the Philippines;

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

reference to the Federal Government of the United States is not the situation of the

province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th

Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations of the United States do not

embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran

[1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs.

New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . .

new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel.

Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law

Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be

interpreted having in view existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of

prohibition is, accordingly, granted. Without any pronouncement regarding costs. So

ordered.

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

Villa-real and Abad Santos, JJ., concur in the result.

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