all cse batch delegation of powers

7/27/2019 All Cse Batch DELEGATION OF POWERS

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 4349 September 24, 1908

THE UNITED STATES, plaintiff-appellee,

vs.

ANICETO BARRIAS, defendant-appellant.

Ortigas & Fisher for appellant.Attorney-General Araneta for appellee.

TRACEY,J.:

In the Court of First Instance of the city of Manila the defendant was charged within a violation of paragraphs 70 and 83 of

Circular No. 397 of the Insular Collector of Customs, duly published in the Official Gazette and approved by the Secretary of

Finance and Justice.1 After a demurrer to the complaint of the lighter Maude, he was moving her and directing her moveme

when heavily laden, in the Pasig River, by bamboo poles in the hands of the crew, and without steam, sail, or any other

external power. Paragraph 70 of Circular No. 397 reads as follows:

No heavily loaded casco, lighter, or other similar craft shall be permitted to move in the Pasig River without being towed by

steam or moved by other adequate power.

Paragraph 83 reads, in part, as follows:

For the violation of any part of the foregoing regulations, the persons offending shall be liable to a fine of not less than P5 a

not more than P500, in the discretion of the court.

In this court, counsel for the appellant attacked the validity of paragraph 70 on two grounds: First that it is unauthorized by

section 19 of Act No. 355; and, second, that if the acts of the Philippine Commission bear the interpretation of authorizing t

Collector to promulgate such a law, they are void, as constituting an illegal delegation of legislative power.

The Attorney-General does not seek to sustain the conviction but joins with the counsel for the defense in asking for the

discharge of the prisoner on the first ground stated by the defense, that the rule of the Collector cited was unauthorized an

illegal, expressly passing over the other question of the delegation of legislative power.

By sections 1, 2, and 3 of Act No. 1136, passed April 29, 1904, the Collector of Customs is authorized to license craft engage

the lighterage or other exclusively harbor business of the ports of the Islands, and, with certain exceptions, all vessels engag

in lightering are required to be so licensed. Sections 5 and 8 read as follows:

SEC. 5. The Collector of Customs for the Philippine Islands is hereby authorized, empowered, and directed to promptly make

and publish suitable rules and regulations to carry this law into effect and to regulate the business herein licensed.SEC. 8. Any person who shall violate the provisions of this Act, or of any rule or regulation made and issued by the Collector

Customs for the Philippine Islands, under and by authority of this Act, shall be deemed guilty of a misdemeanor, and upon

conviction shall be punished by imprisonment for not more than six months, or by a fine of not more than one hundred doll

United States currency, or by both such fine and imprisonment, at the discretion of the court; Provided, That violations of la

may be punished either by the method prescribed in section seven hereof, or by that prescribed in this section or by both.

Under this statute, which was not referred to on the argument, or in the original briefs, there is no difficulty in sustaining th

regulation of the Collector as coming within the terms of section 5. Lighterage, mentioned in the Act, is the very business in

which this vessel was engaged, and when heavily laden with hemp she was navigating the Pasig River below the Bridge of

Spain, in the city of Manila. This spot is near the mouth of the river, the docks whereof are used for the purpose of taking o

and discharging freight, and we entertain no doubt that it was in right sense a part of the harbor, without having recourse t

the definition of paragraph 8 of Customs Administrative Circular No. 136, which reads as follows:The limits of a harbor for the purpose of licensing vessels as herein prescribed (for the lighterage and harbor business) shall

considered to include its confluent navigable rivers and lakes, which are navigable during any season of the year.

The necessity confiding to some local authority the framing, changing, and enforcing of harbor regulations is recognized

throughout the world, as each region and each a harbor requires peculiar use more minute than could be enacted by the

central lawmaking power, and which, when kept within the proper scope, are in their nature police regulations not involvin

undue grant of legislative power.

The complaint in this instance was framed with reference, as its authority, to sections 311 and 319 [19 and 311] at No. 355

the Philippine Customs Administrative Acts, as amended by Act Nos. 1235 and 1480. Under Act No. 1235, the Collector is no

only empowered to make suitable regulations, but also to "fix penalties for violation thereof," not exceeding a fine of P500.

This provision of the statute does, indeed, present a serious question.


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One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws can not be

delegated by that department to any body or authority. Where the sovereign power of the State has located the authority,

there it must remain; only by the constitutional agency alone the laws must be made until the constitution itself is changed

The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted can not relieve itself of the

responsibility by choosing other agencies upon which the power shall be developed, nor can its substitutes the judgment,

wisdom, and patriotism and of any other body for those to which alone the people have seen fit to confide this sovereign tr

(Cooley's Constitutional limitations, 6th ed., p. 137.)

This doctrine is based 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 annot through the intervening mind of another. In the case of the United States vs. Breen (40 Fed. Phil. Rep. 402), an Act of

Congress allowing the Secretary of War to make such rules and regulations as might be necessary to protect improvements

the Mississipi River, and providing that a violation thereof should constitute a misdemeanor, was sustained on the ground t

the misdemeanor was declared not under the delegated power of the Secretary of War, but in the Act of Congress, itself. So

also was a grant to him of power to prescribe rules for the use of canals. (U.S. vs. Ormsbee, 74 Fed. Rep. 207.) but a law

authorizing him to require alteration of any bridge and to impose penalties for violations of his rules was held invalid, as

vesting in him upon a power exclusively lodged in Congress (U.S. vs. Rider, 50 Fed. Rep., 406.) The subject is considered and

some cases reviewed by the Supreme Court of the United States, in re Kollock (165 U.S. 526), which upheld the law authoriz

a commissioner of internal revenue to designate and stamps on oleomargarine packages, an improper use of which should

thereafter constitute a crime or misdemeanor, the court saying (p. 533):

The criminal offense is fully and completely defined by the Act and the designation by the Commissioner of the particular

marks and brands to be used was a mere matter of detail. The regulation was in execution of, or supplementary to, but not

conflict with the law itself. . . .

In Massachusetts it has been decided that the legislature may delegate to the governor and counsel the power to make pilo

regulations. (Martin vs. Witherspoon et al., 135 Mass. 175).

In the case ofThe Board of Harbor Commissioners of the Port of Eureka vs. Excelsior Redwood Company(88 Cal. 491), it was

ruled that harbor commissioners can not impose a penalty under statues authorizing them to do so, the court saying:

Conceding that the legislature could delegate to the plaintiff the authority to make rules and regulation with reference to th

navigation of Humboldt Bay, the penalty for the violation of such rules and regulations is a matter purely in the hands of the

legislature.

Having reached the conclusion that Act No. 1136 is valid, so far as sections 5 and 8 are concerned, and is sufficient to sustai

this prosecution, it is unnecessary that we should pass on the questions discussed in the briefs as to the extend and validity

the other acts. The reference to them in the complaint is not material, as we have frequently held that where an offense iscorrectly described in the complaint an additional reference to a wrong statute is immaterial.

We are also of the opinion that none of the subsequent statutes cited operate to repeal the aforesaid section Act No. 1136

So much of the judgment of the Court of First Instance as convicts the defendant of a violation of Acts Nos. 355 and 1235 is

hereby revoked and is hereby convicted of a misdemeanor and punished by a fine of 25 dollars, with costs of both instances

So ordered.

Arellano, C.J., Torres, Mapa and Willard, JJ., concur.

Carson, J., reserve his opinion.

Footnotes1

4 Off. Gaz. 200.

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.


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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 ofcertiorari

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

ndeterminate penalty of from five years and six months ofprision correccionalto seven years, six months and

twenty-seven days ofprision 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 certiorarito the Supreme Court of the United States but the latter denied the petition for

certiorariin 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 is8/4/13 G.R. No. L-45685

www.lawphil.net/judjuris/juri1937/nov1937/gr_l-45685_1937.html 2/24

nnocent 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 theConstitution, 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:


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. . . 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

udge 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

udicial 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, 1937.8/4/13 G.R. No. L-45685


restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs ofcertiorariand prohibition, herein

petitioners allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction:

. 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 theabsence 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.

I. 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


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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.

II. 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 interimjudge of first instance.

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

mperative 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.

n 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

ts 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 that8/4/13 G.R. No. L-45685


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 pardoningpower 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 andmemorandums, challenge each and every one of the foregoing proposition raised by the petitioners.

As special defenses, respondents allege:

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

writ ofcertiorarior 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

nstance 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


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urisdiction over the same upon motion of herein petitioners themselves.

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

court of its jurisdiction over the case and elevate the proceedings to this court, should not be

tolerated because it impairs the authority and dignity of the trial court which court while sitting in

the probation cases is "a court of limited jurisdiction but of great dignity."

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

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

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

does not specifically provide that an applicant for probation may appeal from a resolution of the

Court of First Instance denying probation, still it is a general rule in this jurisdiction that a final

order, resolution or decision of an inferior court is appealable to the superior court.

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

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

said respondent had filed an alternative motion for reconsideration and new trial within the

requisite period of fifteen days, which motion the trial court was able to resolve in view of the

restraining order improvidently and erroneously issued by this court. l aw phi 1 . ne t

(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

certiorariwith 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 certiorarigrounded 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 retains8/4/13 G.R. No. L-45685


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

ts 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 appealwould 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).

n 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

egislative 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,

n 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 wasadmitted 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.

n 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


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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

nvolve 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;

.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 ofquo warranto brought

n 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 regardsprohibition 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

certiorariand prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law,8/4/13 G.R. No. L-45685


certiorariand 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 ofcertiorarito 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 ChiefJustice, 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 ofEx 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

ndependent 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


8/37

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 ofEx parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178;

37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that

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

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

ndisputably 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,

n 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 ofDirector 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 are8/4/13 G.R. No. L-45685


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.

t is, of course, true that the constitutionality of a statute will not be considered on application for prohibitionwhere 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

t 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

n 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 ofcertiorariand

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


9/37

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 ofYu 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

mport 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 a8/4/13 G.R. No. L-45685


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 inquestion, 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 thecase. (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 ofYu 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


10/37

n 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

egislature: "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.)

n 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

nterested 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).8/4/13 G.R. No. L-45685

www.lawphil.net/judjuris/juri1937/nov1937/gr_l-45685_1937.html 9/24Neodesha, 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:

t 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., theruling 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

mposes 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.

t 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


11/37

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

t 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.

t 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

ndispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case

n 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 that8/4/13 G.R. No. L-45685


are already on probation; that more people will likely take advantage of the Probation Act in the future; and thatthe 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

nstant 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 befound.

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,

s 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

egislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health


12/37

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

n 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

mmediate 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 the8/4/13 G.R. No. L-45685


1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at thetime 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 isnot 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

mpeachment 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:


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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

egislative 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?

n the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled

n 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

egislation 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.)

n 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

8/4/13 G.R. No. L-45685www.lawphil.net/judjuris/juri1937/nov1937/gr_l-45685_1937.html 12/24

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.

f 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


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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

s very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the

argest 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.)

ndeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the

egislature has demonstrated the desire to vest in the courts particularly the trial courts large discretion in

mposing 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

mpose upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)8/4/13 G.R. No. L-45685


mpose 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

all cse batch delegation of powers

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