delegation of powers cases

7/27/2019 Delegation of Powers Cases

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKINGCORPORATION,petitioners,

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

UNJIENG, respondents.

LAUREL, J.:

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

of certiorariand of prohibition to the Court of First Instance of Manila so that this court may review thactuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of thePhilippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendanMariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibithe said Court of First Instance from taking any further action or entertaining further the aforementionedapplication for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committedto prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No41200). 1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai BankingCorporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano Cu

Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine Islands vsMariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch othe Court of First Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng foprobation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila onOctober 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the casas private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence bothin the length of time spent by the court as well as in the volume in the testimony and the bulk of theexhibits presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment oconviction sentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from fouyears and two months of prision correccional to eight years of prision mayor, to pay the costs and withreservation of civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Uponappeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five yearand six months ofprision correccional to seven years, six months and twenty-seven days ofprision mayorbut affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration andfour successive motions for new trial which were denied on December 17, 1935, and final judgment waaccordingly entered on December 18, 1935. The defendant thereupon sought to have the case elevated


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on certiorari to the Supreme Court of the United States but the latter denied the petition forcertiorari inNovember, 1936. This court, on November 24, 1936, denied the petition subsequently filed by th

defendant for leave to file a second alternative motion for reconsideration or new trial and thereafterremanded the case to the court of origin for execution of the judgment.

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

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

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation tothe herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 51937, 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 theConstitution guaranteeing equal protection of the laws for the reason that its applicability is not uniformthroughout the Islands and because section 11 of the said Act endows the provincial boards with thepower to make said law effective or otherwise in their respective or otherwise in their respectiveprovinces. The private prosecution also filed a supplementary opposition on April 19, 1937, elaborating onthe alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to thprovincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in theopposition of the private prosecution except with respect to the questions raised concerning theconstitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding tha"las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos lohechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that the hereinrespondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he stands convictedby this court in G.R. No. 41200, but denying the latter's petition for probation for the reason that:

. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social quse han expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, unaparte de la opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contrun sistema de probacion que permite atisbar en los procedimientos ordinarios de una causa criminaperturbando la quietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusione

enteramente differentes, en menoscabo del interes publico que demanda el respeto de las leyes y deveredicto judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to theresolution denying probation and a notice of intention to file a motion for reconsideration. An alternativemotion for reconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented byan additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set fohearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondenMariano Cu Unjieng because a motion for leave to intervene in the case as amici curiae signed by thirty


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three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whosesignature appears in the aforesaid motion subsequently filed a petition for leave to withdraw hisappearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae wacirculated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and thahe signed the same "without mature deliberation and purely as a matter of courtesy to the person whoinvited me (him)."

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

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to interveneas amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all eventssaid motion should be denied with respect to certain attorneys signing the same who were members of thelegal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent JudgeJose O. Vera issued an order requiring all parties including the movants for intervention as amici curiae toappear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manil

moved for the hearing of his motion for execution of judgment in preference to the motion for leave tointervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for thepostponement of the hearing of both motions. The respondent judge thereupon set the hearing of themotion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervenas amici curiae as in order. Evidence as to the circumstances under which said motion for leave to interveneas amici curiae was signed and submitted to court was to have been heard on August 19, 1937. But at thijuncture, herein petitioners came to this court on extraordinary legal process to put an end to what theyalleged was an interminable proceeding in the Court of First Instance of Manila which fostered "thecampaign of the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by thiHonorable Court on him, exposing the courts to criticism and ridicule because of the apparent inability othe judicial machinery to make effective a final judgment of this court imposed on the defendant MarianoCu Unjieng."

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

To support their petition for the issuance of the extraordinary writs of certiorari and prohibitionherein petitioners allege that the respondent judge has acted without jurisdiction or in excess of hisjurisdiction:

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

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 thprovinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like thCity of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of aspecial provision, the term "province" may be construed to include the City of Manila for the purpose ogiving effect to laws of general application, it is also true that Act No. 4221 is not a law of genera


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application because it is made to apply only to those provinces in which the respective provinciaboards 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 beapplicable to it because it has provided for the salary of a probation officer as required by section 1thereof; 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 distincfrom the Probation Officer provided for in section 11 of the same Act.

II. Because even if the respondent judge originally had jurisdiction to entertain the application forprobation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excesthereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano CuUnjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng'application for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting odenying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937it 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 thesame.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime forwhich he was convicted by final judgment of this court, which finding is not only presumptuous bu

without foundation in fact and in law, and is furthermore in contempt of this court and a violation of therespondent's oath of office as ad interimjudge of first instance.

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

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

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and ShanghaBanking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for asystem of probation for persons eighteen years of age or over who are convicted of crime, iunconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of thePhilippines guaranteeing equal protection of the laws because it confers upon the provincial board of itsprovince the absolute discretion to make said law operative or otherwise in their respective provincesbecause it constitutes an unlawful and improper delegation to the provincial boards of the severaprovinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and bythe Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives th


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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 withouuniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the City of Manilain behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with theissues raised by other petitioner regarding the constitutionality of Act No. 4221, and on the oral argumenheld on October 6, 1937, further elaborated on the theory that probation is a form of reprieve and therefor

Act. No. 4221 is an encroachment on the exclusive power of the Chief Executive to grant pardons andreprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No4221 not only encroaches upon the pardoning power to the executive, but also constitute an unwarranteddelegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937, twmemorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People othe Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai BankingCorporation, one sustaining the power of the state to impugn the validity of its own laws and the othecontending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presentedAnother joint memorandum was filed by the same persons on the same day, October 9, 1937, alleging thaAct No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes anunlawful 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 inprobation proceedings and may attack the probation law as unconstitutional; and that this court may pasupon 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 wriof certiorari or of prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the petitioners is the verysame remedy prayed for by them before the trial court and was still pending resolution before the triacourt 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 thetrial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory thaits 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 exercisesaid jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motionof herein petitioners themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of itsjurisdiction over the case and elevate the proceedings to this court, should not be tolerated because iimpairs the authority and dignity of the trial court which court while sitting in the probation cases is "acourt of limited jurisdiction but of great dignity."


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(6) That under the supposition that this court has jurisdiction to resolve the question submitted to andpending resolution by the trial court, the present action would not lie because the resolution of the triacourt denying probation is appealable; for although the Probation Law does not specifically providthat an applicant for probation may appeal from a resolution of the Court of First Instance denyingprobation, still it is a general rule in this jurisdiction that a final order, resolution or decision of aninferior court is appealable to the superior court.

(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjiengbeing appealable, the same had not become final and executory for the reason that the said respondenhad filed an alternative motion for reconsideration and new trial within the requisite period of fifteendays, which motion the trial court was able to resolve in view of the restraining order improvidentlyand erroneously issued by this court.lawphi1.net

(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial courdenying probation is not final and unappealable when he presented his answer to the motion forreconsideration 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 isincumbent upon the accused to file an action for the issuance of the writ ofcertiorari with mandamus, iappearing that the trial court, although it believed that the accused was entitled to probationnevertheless denied probation for fear of criticism because the accused is a rich man; and that, before apetition for certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it isincumbent upon the petitioner to file a motion for reconsideration specifying the error committed sothat 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 itsjurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that thipower to alter or modify an order or resolution is inherent in the courts and may be exercise either motuproprio or upon petition of the proper party, the petition in the latter case taking the form of a motion foreconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, saidcourt cannot order execution of the same while it is on appeal, for then the appeal would not be availingbecause the doors of probation will be closed from the moment the accused commences to serve hissentence (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 No4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an undu

delegation of legislative power, does not infringe the equal protection clause of the Constitution, and doenot encroach upon the pardoning power of the Executive. In an additional memorandum filed on the samdate, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free fromconstitutional objections and contend, in addition, that the private prosecution may not intervene inprobation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and theSolicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot beattacked for the first time before this court; that probation in unavailable; and that, in any event, section 11of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondenMariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of this


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court and filed anew on November 5, 1937. This memorandum elaborates on some of the pointraised 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 notedthat the court below, in passing upon the merits of the application of the respondent Mariano Cu Unjiengand in denying said application assumed the task not only of considering the merits of the application, bu

of passing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by thiscourt. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look intothe circumstances attending the commission of the offense, this does not authorize it to reverse thefindings and conclusive of this court, either directly or indirectly, especially wherefrom its own admissionreliance was merely had on the printed briefs, averments, and pleadings of the parties. As alreadyobserved by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "ieach and every Court of First Instance could enjoy the privilege of overruling decisions of the SupremeCourt, there would be no end to litigation, and judicial chaos would result." A becoming modesty oinferior courts demands conscious realization of the position that they occupy in the interrelation andoperation of the intergrated judicial system of the nation.

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

To arrive at a correct conclusion on the first question, resort to certain guiding principles isnecessary. It is a well-settled rule that the constitutionality of an act of the legislature will not bedetermined by the courts unless that question is properly raised and presented inappropriate cases and inecessary to a determination of the case; i.e., the issue of constitutionality must be the very limota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in ordinaryactions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where theremedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus, in CuUnjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the constitutionality of astatute may be raised by the petitioner inmandamus proceedings (see, also, 12 C. J., p. 783); andin Government of the Philippine Islands vs. Springer([1927], 50 Phil., 259 [affirmed in Springer vs. Governmenof the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of thlegislature 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 habeacorpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there arauthorities to the contrary; on an application for injunction to restrain action under the challenged statut(mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminarinjunction where the determination of the constitutional question is necessary to a decision of the case. (12C. 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 Nev280; 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 YuCong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an origina


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action forcertiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the ChineseBookkeeping Law, was there challenged by the petitioners, and the constitutional issue was not mesquarely by the respondent in a demurrer. A point was raised "relating to the propriety of theconstitutional question being decided in original proceedings in prohibition." This court decided to take upthe constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutionalThe 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 thquestion 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 couris granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals opersons, and original jurisdiction over courts of first instance, when such courts are exercising functionswithout or in excess of their jurisdiction. It has been held by that court that the question of the validityof the criminal statute must usually be raised by a defendant in the trial court and be carried regularlyin review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But inthis case where a new act seriously affected numerous persons and extensive property rights, and waslikely 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 justiceThe 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. RA. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to thjurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondentsand both parties ask a decision on the merits. In view of the broad powers in prohibition granted to thacourt 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 jurisdictionand directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping ajurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The generarule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferiocourt has jurisdiction independent of the statute the constitutionality of which is questioned, because insuch cases the interior court having jurisdiction may itself determine the constitutionality of the statuteand its decision may be subject to review, and consequently the complainant in such cases ordinarily haadequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunaderives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibitionfrom enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [DC.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; Statvs. 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 AcNo. 4221 which prescribes in detailed manner the procedure for granting probation to accused personafter their conviction has become final and before they have served their sentence. It is true that acommon law the authority of the courts to suspend temporarily the execution of the sentence is recognizedand, according to a number of state courts, including those of Massachusetts, Michigan, New York, andOhio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; Peopleex 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 State


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([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), thSupreme Court of the United States expressed the opinion that under the common law the power of thecourt was limited to temporary suspension, and brushed aside the contention as to inherent judicial powesaying, through Chief Justice White:

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

and upon conviction to impose the punishment provided by law is judicial, and it is equally to beconceded that, in exerting the powers vested in them on such subject, courts inherently possess ampleright to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authorityBut these concessions afford no ground for the contention as to power here made, since it must resupon the proposition that the power to enforce begets inherently a discretion to permanently refuse todo so. And the effect of the proposition urged upon the distribution of powers made by theConstitution will become apparent when it is observed that indisputable also is it that the authority todefine and fix the punishment for crime is legislative and includes the right in advance to bring withinjudicial discretion, for the purpose of executing the statute, elements of consideration which would beotherwise beyond the scope of judicial authority, and that the right to relieve from the punishmentfixed 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 FirsInstance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power tosuspend 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 thecourts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, whenthey argue that a Court of First Instance sitting in probation proceedings is a court of limited jurisdictionIts 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 foprohibition where the question has not been properly brought to the attention of the court by objection ofsome kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been squarelypresented not only before this court by the petitioners but also before the trial court by the privateprosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court below, declined topass upon the question on the ground that the private prosecutor, not being a party whose rights araffected by the statute, may not raise said question. The respondent judge cited Cooley on ConstitutionaLimitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 22Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attackmade on the constitutionality of a statute by one who has no interest in defeating it because his rights ar

not affected by its operation. The respondent judge further stated that it may not motu proprio take up thconstitutional question and, agreeing with Cooley that "the power to declare a legislative enactment voidis one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising inany case where he can conscientiously and with due regard to duty and official oath decline theresponsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that AcNo. 4221 is constitutional. While therefore, the court a quo admits that the constitutional question waraised before it, it refused to consider the question solely because it was not raised by a proper partyRespondents herein reiterates this view. The argument is advanced that the private prosecution has nopersonality to appear in the hearing of the application for probation of defendant Mariano Cu Unjieng in


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criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of constitutionalitywas not properly raised in the lower court. Although, as a general rule, only those who are parties to a suimay question the constitutionality of a statute involved in a judicial decision, it has been held that since thdecree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends onthe validity of the statute in question, the issue of the constitutionality will be considered on its beingbrought 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 bythe proper party, it does not follow that the issue may not be here raised in an original actionof certiorari and prohibitions. It is true that, as a general rule, the question of constitutionality must braised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised athe trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. Seealso, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that thgeneral rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine the timewhen a question affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 9N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said thathe question may be raised for the first time at any stage of the proceedings, either in the trial court or onappeal. (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 thquestion is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 13ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmodvs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutionaquestion will be considered by an appellate court at any time, where it involves the jurisdiction of thcourt below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider theconstitutional question raised for the first time before this court in these proceedings, we turn again andpoint with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that theHongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the propeparty to raise the constitutional question here a point we do not now have to decide we are of theopinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City oManila, is such a proper party in the present proceedings. The unchallenged rule is that the person whoimpugns the validity of a statute must have a personal and substantial interest in the case such that he hassustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if AcNo. 4221 really violates the constitution, the People of the Philippines, in whose name the present action ibrought, has a substantial interest in having it set aside. Of grater import than the damage caused by theillegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by theenforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of itown laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springevs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an acof 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 Michiganthrough its Attorney General, instituted quo warranto proceedings to test the right of the respondents torenew a mining corporation, alleging that the statute under which the respondents base their right waunconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of thstate to question the constitutionality of the statute was though, as a general rule, only those who arparties to a suit may question the constitutionality of a statute involved in a judicial decision, it has beenheld that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of thecourt depends on the validity of the statute in question, the issue of constitutionality will be considered onits being brought to the attention of the court by persons interested in the effect to begin the statute. (12


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C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the courbelow by the proper party, it does not follow that the issue may not be here raised in an original action ocertiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raisedat the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the triaand if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, alsoCadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the genera

rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when aquestion affecting the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that thequestion may be raised for the first time at any state of the proceedings, either in the trial court or onappeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on theconstitutional question, though raised for first time on appeal, if it appears that a determination of thquestion is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmodvs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutionaquestion will be considered by an appellate court at any time, where it involves the jurisdiction of thcourt 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 andpoint with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that theHongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the propeparty to raise the constitutional question here a point we do not now have to decide we are of theopinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City oManila, is such a proper party in the present proceedings. The unchallenged rule is that the person whoimpugns the validity of a statute must have a personal and substantial interest in the case such that he hassustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if Act No4221 really violates the Constitution, the People of the Philippines, in whose name the present action ibrought, has a substantial interest in having it set aside. Of greater import than the damage caused by thillegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by theenforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of itown laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springevs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an acof the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. InAttorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michiganthrough its Attorney General, instituted quo warranto proceedings to test the right of the respondents torenew a mining corporation, alleging that the statute under which the respondents base their right wasunconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of thstate to question the constitutionality of the statute was itself questioned. Said the Supreme Court oMichigan, through Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a lawenacted by their representatives; that to an accusation by the people of Michigan of usurpation theirgovernment, a statute enacted by the people of Michigan is an adequate answer. The last proposition itrue, but, if the statute relied on in justification is unconstitutional, it is statute only in form, and lackthe force of law, and is of no more saving effect to justify action under it than if it had never beenenacted. The constitution is the supreme law, and to its behests the courts, the legislature, and thepeople must bow . . . The legislature and the respondents are not the only parties in interest upon suchconstitutional questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a


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party affected by an unconstitutional act of the legislature: "The people have a deep and vested interesin maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vsMckeen, 1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was broughby the Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of th

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 ialways 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, aan individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 6Kan., 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, ocounty attorney, may exercise his bet judgment as to what sort of action he will bring to have the matte

determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108Pac., 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. vsCity 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; Statvs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837147 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 theduty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of theargument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth JudiciaDistrict (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a statute iunconstitutional if he finds if in conflict with one which it is his duty to enforce. In State ex rel. HallDistrict Attorney, vs. Judge, etc., the ruling was the judge should not, merely because he believed acertain statute to be unconstitutional forbid the district attorney to file a bill of information charging 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 bedecided in order to determine the right of a party litigant. Stateex rel. Nicholls, Governor, etc., iauthority for the proposition merely that an officer on whom a statute imposes the duty of enforcing itsprovisions cannot avoid the duty upon the ground that he considers the statute unconstitutional, andhence in enforcing the statute he is immune from responsibility if the statute be unconstitutionalState ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g., thestate auditor and state treasurer, should not decline to perform ministerial duties imposed upon themby a statute, on the ground that they believe the statute is unconstitutional.


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It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, tosupport the Constitution of the state. If, in the performance of his duty he finds two statutes in conflicwith each other, or one which repeals another, and if, in his judgment, one of the two statutes iunconstitutional, it is his duty to enforce the other; and, in order to do so, he is compelled to submit tothe court, by way of a plea, that one of the statutes is unconstitutional. If it were not so, the power of theLegislature 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 thestate may impugn the validity of its laws. They have not cited any authority running clearly in theopposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated isound but that it has no application in the present case, nor may it be invoked by the City Fiscal in behalof the People of the Philippines, one of the petitioners herein, the principal reasons being that the validitybefore this court, that the City Fiscal is estopped from attacking the validity of the Act and, not authorizedchallenge the validity of the Act in its application outside said city. (Additional memorandum orespondents, 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 ha

not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedlyregarded by him as constitutional, is no reason for considering the People of the Philippines estopped fromnor assailing its validity. For courts will pass upon a constitutional questions only when presented beforit in bona fide cases for determination, and the fact that the question has not been raised before is not a validreason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon thestatute 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 necessaryto the resolution of the instant case. For, ". . . while the court will meet the question with firmness, whereits decision is indispensable, it is the part of wisdom, and just respect for the legislature, renders it properto waive it, if the case in which it arises, can be decided on other points." ( Ex parte Randolph [1833], 20 FCas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that thdetermination 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 [aff212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 PortRico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute the validity of whichis attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Chenevs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws hiprivilege 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 theProbation Act is a new addition to our statute books and its validity has never before been passed upon bythe courts; that may persons accused and convicted of crime in the City of Manila have applied foprobation; that some of them are already on probation; that more people will likely take advantage of thProbation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period oabout four years since his first conviction. All wait the decision of this court on the constitutional questionConsidering, therefore, the importance which the instant case has assumed and to prevent multiplicity osuits, 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. 7


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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 [192243 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuchas the property and personal rights of nearly twelve thousand merchants are affected by theseproceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest othe public welfare and for the advancement of public policy, we have determined to overrule the defens

of want of jurisdiction in order that we may decide the main issue. We have here an extraordinarysituation which calls for a relaxation of the general rule." Our ruling on this point was sustained by thSupreme Court of the United States. A more binding authority in support of the view we have taken cannot be found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has beenproperly raised. Now for the main inquiry: Is the Act unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce theConstitution. This court, by clear implication from the provisions of section 2, subsection 1, and section 10of Article VIII of the Constitution, may declare an act of the national legislature invalid because in conflic

with the fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in cleacases, it will not hesitate to give effect to the supreme law by setting aside a statute in conflict therewithThis is of the essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonabledoubts should be resolved in favor of the constitutionality of a statute. An act of the legislature approvedby the executive, is presumed to be within constitutional limitations. The responsibility of upholding theConstitution rests not on the courts alone but on the legislature as well. "The question of the validity ofevery statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 2Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the executive. Themembers of the Legislature and the Chief Executive have taken an oath to support the Constitution and imust be presumed that they have been true to this oath and that in enacting and sanctioning a particulalaw they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power tooverturn the solemn declarations of two of the three grand departments of the governments. (6 R.C.L., p101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of thepeople as expressed through an elective Legislature and an elective Chief Executive. It follows, thereforethat the courts will not set aside a law as violative of the Constitution except in a clear case. This is aproposition too plain to require a citation of authorities.

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

the fact that the President of the Philippines had already expressed his opinion against theconstitutionality of the Probation Act, adverting that as to the Executive the resolution of this question waa foregone conclusion. Counsel, however, reiterated his confidence in the integrity and independence othis court. We take notice of the fact that the President in his message dated September 1, 1937recommended to the National Assembly the immediate repeal of the Probation Act (No. 4221); that thimessage resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Actsubject to certain conditions therein mentioned; but that said bill was vetoed by the President onSeptember 13, 1937, much against his wish, "to have stricken out from the statute books of thCommonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this


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connection that, in vetoing the bill referred to, the President exercised his constitutional prerogative. Hemay express the reasons which he may deem proper for taking such a step, but his reasons are not bindingupon us in the determination of actual controversies submitted for our determination. Whether or not theExecutive should express or in any manner insinuate his opinion on a matter encompassed within hisbroad constitutional power of veto but which happens to be at the same time pending determination inthis 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 andprevent us from taking what in our opinion is the proper course of action to take in a given case. It if isever necessary for us to make any vehement affirmance during this formative period of our politicahistory, it is that we are independent of the Executive no less than of the Legislative department of ougovernment independent in the performance of our functions, undeterred by any consideration, freefrom politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn dutyas we see it and as we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Acencroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation olegislative 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 forcat the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the GovernorGeneral of the Philippines "the exclusive power to grant pardons and reprieves and remit fines andforfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) Theprovisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive" foundin the Jones Law has been omitted from the Constitution. Under the Jones Law, as at common law, pardoncould be granted any time after the commission of the offense, either before or after conviction(Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The GovernorGeneral of the Philippines was thus empowered, like the President of the United States, to pardon a personbefore the facts of the case were fully brought to light. The framers of our Constitution thought thisundesirable and, following most of the state constitutions, provided that the pardoning power can only beexercised "after conviction". So, too, under the new Constitution, the pardoning power does not extend to"cases of impeachment". This is also the rule generally followed in the United States (Vide Constitution othe United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleadedin bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard anddetermined, it is not understood that the king's royal grace is further restrained or abridged." (Vide, Exparte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obviousIn England, Judgment on impeachment is not confined to mere "removal from office and disqualificationto 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. ThHouse of Lords, on a conviction may, by its sentence, inflict capital punishment, perpetual banishmentperpetual banishment, fine or imprisonment, depending upon the gravity of the offense committedtogether with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) OuConstitution also makes specific mention of "commutation" and of the power of the executive to impose, inthe pardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnestymay be granted by the President under the Constitution but only with the concurrence of the NationaAssembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient fo


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courts to suspend sentenced. In the same opinion the court pointed out the necessity for action byCongress 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. In1917, a bill was favorably reported by the Judiciary Committee and passed the House. In 1920, thjudiciary 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 toits treatment of those convicted of violations of its criminal laws in harmony with that of the states ofthe Union. At the present time every state has a probation law, and in all but twelve states the lawapplies both to adult and juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults[1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. InRiggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under consideration havbeen reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and theconstitutionality of the act fully sustained, and the same held in no manner to encroach upon thepardoning power of the President. This case will be found to contain an able and comprehensive reviewof the law applicable here. It arose under the act we have to consider, and to it and the authorities citedtherein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the CircuiCourt of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing theProbation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocalanguage, pointed to Congress as possessing the requisite power to enact probation laws, that a federa

probation law as actually enacted in 1925, and that the constitutionality of the Act has been assumed bythe Supreme Court of the United States in 1928 and consistently sustained by the inferior federal courts ina number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, maylegally enact a probation law under its broad power to fix the punishment of any and all penal offensesThis conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to denominate andefine all classes of crime, and to prescribe for each a minimum and maximum punishment." And in Statvs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "Th

legislative power to set punishment for crime is very broad, and in the exercise of this power the generaassembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be imposed, asto the beginning and end of the punishment and whether it should be certain or indeterminate oconditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislaturehas defined all crimes and fixed the penalties for their violation. Invariably, the legislature hademonstrated the desire to vest in the courts particularly the trial courts large discretion in imposingthe penalties which the law prescribes in particular cases. It is believed that justice can best be served byvesting this power in the courts, they being in a position to best determine the penalties which anindividual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain


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from imposing a sentence merely because, taking into consideration the degree of malice and the injurycaused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in suchcase to submit to the Chief Executive, through the Department of Justice, such statement as it may deemproper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances areattendant in the commission of a crime and the law provides for a penalty composed of two indivisiblepenalties, the courts may allow such circumstances to offset one another in consideration of their numbe

and importance, and to apply the penalty according to the result of such compensation. (Art. 63, rule 4Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, othe Revised Penal Code empowers the courts to determine, within the limits of each periods, in case thepenalty prescribed by law contains three periods, the extent of the evil produced by the crime. In theimposition of fines, the courts are allowed to fix any amount within the limits established by lawconsidering not only the mitigating and aggravating circumstances, but more particularly the wealth omeans of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides tha"a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who hasnot acted without discernment, but always lower by two degrees at least than that prescribed by law fothe crime which he has committed. Article 69 of the same Code provides that in case of "incomplete selfdefense", 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 mentionedin article 11 and 12 of the Code, "the courts shall impose the penalty in the period which may be deemedproper, in view of the number and nature of the conditions of exemption present or lacking." And, in casethe commission of what are known as "impossible" crimes, "the court, having in mind the social dangerand the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fineranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deductedform the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the deathpenalty is not imposed when the guilty person is more than seventy years of age, or where upon appeal orevision of the case by the Supreme Court, all the members thereof are not unanimous in their voting as tothe propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative Codeas amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman withinthe three years next following the date of the sentence or while she is pregnant, or upon any person oveseventy years of age (art. 83); and when a convict shall become insane or an imbecile after final sentencehas been pronounced, or while he is serving his sentenced, the execution of said sentence shall besuspended 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 imore clearly demonstrated in various other enactments, including the probation Act. There is thIndeterminate 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 thepenalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prison sentencefor an offenses punished by the Revised Penal Code, or its amendments, the court shall sentence theaccused to an indeterminate sentence the maximum term of which shall be that which, in view of theattending circumstances, could be properly imposed under the rules of the said Code, and to a minimumwhich shall be within the range of the penalty next lower to that prescribed by the Code for the offenseand if the offense is punished by any other law, the court shall sentence the accused to an indeterminatesentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimumshall not be less than the minimum term prescribed by the same." Certain classes of convicts are, by section


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2 of the law, excluded from the operation thereof. The Legislature has also enacted the JuvenileDelinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of thoriginal Act and section 1 of the amendatory Act have become article 80 of the Revised Penal Codeamended by Act No. 4117 of the Philippine Legislature and recently reamended by Commonwealth AcNo. 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 penaltie

prescribed by law by permitting the suspension of the execution of the judgment in the discretion of thetrial court, after due hearing and after investigation of the particular circumstances of the offenses, thcriminal record, if any, of the convict, and his social history. The Legislature has in reality decreed that incertain cases no punishment at all shall be suffered by the convict as long as the conditions of probationare faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in conflict withthe power of the Chief Executive to grant pardons and reprieves, because, to use the language of theSupreme Court of New Mexico, "the element of punishment or the penalty for the commission of a wrongwhile to be declared by the courts as a judicial function under and within the limits of law as announcedby legislative acts, concerns solely the procedure and conduct of criminal causes, with which the executivcan have nothing to do." (Ex parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), thcourt 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 vestedwith the power to pardon after final sentence has been imposed by the courts, the power of the courts toimposed any penalty which may be from time to time prescribed by law and in such manner as may bedefined cannot be questioned."

We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful forthe legislature to vest in the courts the power to suspend the operation of a sentenced, by probation orotherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex relSummerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927;Ex parte Clendenning [1908], 22 Okla., 108; Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162;Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. Stat[1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; Stateex 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 [1903109 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. State[1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 83Re 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 Pac1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 13S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 NE., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 15Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. DistricCourt [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [NS.], 848; Stateex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. JEq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. exrel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675


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exercised by the executive, and the other by the judicial department. We therefore conclude that astatute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain caseafter conviction, a power inherent in such courts at common law, which was understood when thconstitution was adopted to be an ordinary judicial function, and which, ever since its adoption, habeen exercised of legislative power under the constitution. It does not encroach, in any just sense, uponthe 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., 265Carson, J., concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally andcompletely exonerated. He is not exempt from the entire punishment which the law inflicts. Under thProbation Act, the probationer's case is not terminated by the mere fact that he is placed on probationSection 4 of the Act provides that the probation may be definitely terminated and the probationer finallydischarged from supervision only after the period of probation shall have been terminated and thprobation officer shall have submitted a report, and the court shall have found that the probationer hacomplied with the conditions of probation. The probationer, then, during the period of probation, remainin 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 becommitted 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 itIt is really a new mode of punishment, to be applied by the judge in a proper case, in substitution of theimprisonment and find prescribed by the criminal laws. For this reason its application is as purely judicial act as any other sentence carrying out the law deemed applicable to the offense. The executivact of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or ratheis outside of and above it. There is thus no conflict with the pardoning power, and no possibleunconstitutionality 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 sentenceSnodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upomost strongly by the petitioners as authority in support of their contention that the power to grant pardonand reprieves, having been vested exclusively upon the Chief Executive by the Jones Law, may not bconferred by the legislature upon the courts by means of probation law authorizing the indefinite judiciasuspension of sentence. We have examined that case and found that although the Court of CriminaAppeals of Texas held that the probation statute of the state in terms conferred on the district courts thpower to grant pardons to persons convicted of crime, it also distinguished between suspensions sentenceon the one hand, and reprieve and commutation of sentence on the other. Said the court, throughHarper,J.:

That the power to suspend the sentence does not conflict with the power of the Governor to granreprieves 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 aday certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In rBuchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This lawcannot be hold in conflict with the power confiding in the Governor to grant commutations opunishment, for a commutations is not but to change the punishment assessed to a less punishment.


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In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Courof Montana had under consideration the validity of the adult probation law of the state enacted in 1913now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid as not impinginupon the pardoning power of the executive. In a unanimous decision penned by Justice Holloway, thecourt said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at thetime our Constitution was adopted, and no one of them was intended to comprehend the suspension othe execution of the judgment as that phrase is employed in sections 12078-12086. A "pardon" is an acof grace, proceeding from the power intrusted with the execution of the laws which exempts theindividual 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 La693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Exparte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission of a part of the punishment; asubstitution of a less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 AmRep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is thwithholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a postponemen

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 section12078 has been determined; but the same objections have been urged against parole statutes which vesthe power to parole in persons other than those to whom the power of pardon is granted, and thesstatutes have been upheld quite uniformly, as a reference to the numerous cases cited in the notes toWoods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also20 R. C. L., 524.)

We conclude that the Probation Act does not conflict with the pardoning power of the Executive. Thpardoning power, in respect to those serving their probationary sentences, remains as full and complete asif the Probation Law had never been enacted. The President may yet pardon the probationer and thuplace 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 thareason 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 thesdepartments of the government derives its authority from the Constitution which, in turn, is the highesexpression of popular will. Each has exclusive cognizance of the matters within its jurisdiction, and issupreme within its own sphere.

The power to make laws the legislative power is vested in a bicameral Legislature by the JoneLaw (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution othe Philippines). The Philippine Legislature or the National Assembly may not escape its duties andresponsibilities by delegating that power to any other body or authority. Any attempt to abdicate th


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power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principlis said to have originated with the glossators, was introduced into English law through a misreading oBracton, there developed as a principle of agency, was established by Lord Coke in the English public lawin decisions forbidding the delegation of judicial power, and found its way into America as an enlightenedprinciple of free government. It has since become an accepted corollary of the principle of separation opowers. (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 ianywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge Cooley enunciates thedoctrine in the following oft-quoted language: "One of the settled maxims in constitutional law is, that thepower conferred upon the legislature to make laws cannot be delegated by that department to any othebody or authority. Where the sovereign power of the state has located the authority, there it must remainand by the constitutional agency alone the laws must be made until the Constitution itself is charged. Thpower to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieveitself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor can isubstitute the judgment, wisdom, and patriotism of any other body for those to which alone the peoplehave seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethica

principle that such a delegated power constitutes not only a right but a duty to be performed by thdelegate by the instrumentality of his own judgment acting immediately upon the matter of legislation andnot 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. Iadmits of exceptions. An exceptions sanctioned by immemorial practice permits the central legislativebody to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Lawed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our systemof government, that local affairs shall be managed by local authorities, and general affairs by the centraauthorities; and hence while the rule is also fundamental that the power to make laws cannot be delegatedthe creation of the municipalities exercising local self government has never been held to trench upon tharule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant othe authority to prescribed local regulations, according to immemorial practice, subject of course to thinterposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the samprinciple, Congress is powered to delegate legislative power to such agencies in the territories of theUnited States as it may select. A territory stands in the same relation to Congress as a municipality or cityto the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 1281 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at largeSome authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing Peopl

vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question owhether or not a state has ceased to be republican in form because of its adoption of the initiative andreferendum has been held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vsOregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of suclaws has been looked upon with favor by certain progressive courts, the sting of the decisions of the moreconservative 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. [NS.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may bdelegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the


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Philippines provides that "The National Assembly may by law authorize the President, subject to suchlimitations and restrictions as it may impose, to fix within specified

delegation of powers cases

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