and final judgment was accordingly entered on December 18, 1935. The
defendant thereupon sought to have the case elevated oncertiorari to the
Supreme Court of the United States but the latter denied the petition
for certiorari in
November, 1936. This court, on
November 24,
1936, denied the petition subsequently filed by the defendant for leave to file
a second alternative motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by
the herein respondent Mariano Cu Unjieng on
November 27, 1936,
before the trial court, under the provisions of Act No. 4221 of the defunct
Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted,
that he has no criminal record and that he would observe good conduct in the
future. The Court of First Instance of Manila, Judge Pedro Tuason presiding,
referred the application for probation of the Insular Probation Office which
recommended denial of the same June 18, 1937. Thereafter, the Court of
First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set
the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the
granting of probation to the herein respondent Mariano Cu Unjieng. The
private prosecution also filed an opposition on April 5, 1937, alleging, among
other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section
1, subsection (1), Article III of the Constitution guaranteeing equal protection
of the laws for the reason that its applicability is not uniform throughout the
Islands and because section 11 of the said Act endows the provincial boards
with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a
supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative
power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private
prosecution except with respect to the questions raised concerning the
constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a
resolution with a finding that "las pruebas no han establecido de unamanera
concluyente la culpabilidad del peticionario y que todos los hechos probados
no son inconsistentes o incongrentes con su inocencia" and concludes that
the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of
the crime of which he stands convicted by this court in G.R. No. 41200, but
denying the latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las
circunstancias y la historia social que se han expuesto en el cuerpo
de esta resolucion, que hacen al peticionario acreedor de la misma,
una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de
una causa criminal perturbando la quietud y la eficacia de las
decisiones ya recaidas al traer a la superficie conclusiones
enteramente differentes, en menoscabo del interes publico que
demanda el respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed
an exception to the resolution denying probation and a notice of intention to
file a motion for reconsideration. An alternative motion for reconsideration or
new trial was filed by counsel on July 13, 1937. This was supplemented by
an additional motion for reconsideration submitted on July 14, 1937. The
aforesaid motions were set for hearing on July 31, 1937, but said hearing
was postponed at the petition of counsel for the respondent Mariano Cu
Unjieng because a motion for leave to intervene in the case as amici
curiae signed by thirty-three (thirty-four) attorneys had just been filed with the
trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid
motion subsequently filed a petition for leave to withdraw his appearance
as amicus curiae on the ground that the motion for leave to intervene
as amici curiae was circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed the same
"without mature deliberation and purely as a matter of courtesy to the person
who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial
court for the issuance of an order of execution of the judgment of this court in
said case and forthwith to commit the herein respondent Mariano Cu Unjieng
to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion
for leave to intervene as amici curiaeaforementioned, asking that a date be
set for a hearing of the same and that, at all events, said motion should be
denied with respect to certain attorneys signing the same who were members
of the legal staff of the several counsel for Mariano Cu Unjieng. On August
10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all
Respondents in their answer dated August 31, 1937, as well as in their oral
argument and memorandums, challenge each and every one of the foregoing
proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to
warrant the issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy
sought by the petitioners is the very same remedy prayed for by them
before the trial court and was still pending resolution before the trial
court when the present petition was filed with this court.
(3) That the petitioners having themselves raised the question as to
the execution of judgment before the trial court, said trial court has
acquired exclusive jurisdiction to resolve the same under the theory
that its resolution denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent
jurisdiction with the Court of First Instance to decide the question as
to whether or not the execution will lie, this court nevertheless cannot
exercise said jurisdiction while the Court of First Instance has
assumed jurisdiction over the same upon motion of herein petitioners
themselves.
(5) That upon the procedure followed by the herein petitioners in
seeking to deprive the trial court of its jurisdiction over the case and
elevate the proceedings to this court, should not be tolerated
because it impairs the authority and dignity of the trial court which
court while sitting in the probation cases is "a court of limited
jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to
resolve the question submitted to and pending resolution by the trial
court, the present action would not lie because the resolution of the
trial court denying probation is appealable; for although the Probation
Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying
probation, still it is a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable to the superior
court.
(7) That the resolution of the trial court denying probation of herein
respondent Mariano Cu Unjieng being appealable, the same had not
become final and executory for the reason that the said respondent
had filed an alternative motion for reconsideration and new trial within
the requisite period of fifteen days, which motion the trial court was
able to resolve in view of the restraining order improvidently and
erroneously issued by this court.lawphi1.net
(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 ofcertiorari with mandamus, it
appearing that the trial court, although it believed that the accused
was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a
petition for certiorari grounded on an irregular exercise of jurisdiction
by the trial court could lie, it is incumbent upon the petitioner to file a
motion for reconsideration specifying the error committed so that the
trial court could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not
appealable, the trial court retains its jurisdiction within a reasonable
time to correct or modify it in accordance with law and justice; that
this power to alter or modify an order or resolution is inherent in the
courts and may be exercise either motu proprio or upon petition of the
proper party, the petition in the latter case taking the form of a motion
for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is
appealable as respondent allege, said court cannot order execution
of the same while it is on appeal, for then the appeal would not be
availing because the doors of probation will be closed from the
moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the
respondents maintain that Act No. 4221 is constitutional because, contrary to
therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such
proceedings is conferred exclusively by Act No. 4221 of the Philippine
Legislature.
It is, of course, true that the constitutionality of a statute will not be
considered on application for prohibition where the question has not been
properly brought to the attention of the court by objection of some kind (Hill
vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable
that the constitutional issue has been squarely presented not only before this
court by the petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of
the court below, declined to pass upon the question on the ground that the
private prosecutor, not being a party whose rights are affected by the statute,
may not raise said question. The respondent judge cited Cooley on
Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743),
as authority for the proposition that a court will not consider any attack made
on the constitutionality of a statute by one who has no interest in defeating it
because his rights are not affected by its operation. The respondent judge
further stated that it may not motu proprio take up the constitutional question
and, agreeing with Cooley that "the power to declare a legislative enactment
void is one which the judge, conscious of the fallibility of the human
judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded
on the assumption that Act No. 4221 is constitutional. While therefore, the
court a quo admits that the constitutional question was raised before it, it
refused to consider the question solely because it was not raised by a proper
party. Respondents herein reiterates this view. The argument is advanced
that the private prosecution has no personality to appear in the hearing of the
application for probation of defendant Mariano Cu Unjieng in criminal case
No. 42648 of the Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court. Although, as a
general rule, only those who are parties to a suit may question the
constitutionality of a statute involved in a judicial decision, it has been held
that since the decree pronounced by a court without jurisdiction is void,
where the jurisdiction of the court depends on the validity of the statute in
question, the issue of the constitutionality will be considered on its being
brought to the attention of the court by persons interested in the effect to be
given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by the
proper party, it does not follow that the issue may not be here raised in an
original action of certiorari and prohibitions. It is true that, as a general rule,
the question of constitutionality must be raised at the earliest opportunity, so
that if not raised by the pleadings, ordinarily it may not be raised at the trial,
and if not raised in the trial court, it will not considered on appeal. (12 C. J., p.
786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil.,
192, 193-195.) But we must state that the general rule admits of exceptions.
Courts, in the exercise of sounds discretion, may determine the time when a
question affecting the constitutionality of a statute should be presented. (In
re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although
there is a very sharp conflict of authorities, it is said that the question may be
raised for the first time at any stage of the proceedings, either in the trial
court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held
that it is the duty of a court to pass on the constitutional question, though
raised for the first time on appeal, if it appears that a determination of the
question is necessary to a decision of the case. (McCabe's Adm'x vs.
Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs.
St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St.
Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held
that a constitutional question will be considered by an appellate court at any
time, where it involves the jurisdiction of the court below (State vs. Burke
[1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the
constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong
Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong &
Shanghai Banking Corporation, represented by the private prosecution, is not
the proper party to raise the constitutional question here a point we do not
now have to decide we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The unchallenged
rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or
will sustained, direct injury as a result of its enforcement. It goes without
saying that if Act No. 4221 really violates the constitution, the People of the
Philippines, in whose name the present action is brought, has a substantial
interest in having it set aside. Of grater import than the damage caused by
the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the wellsettled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312;
41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to
question the constitutionality of the statute was though, as a general rule,
only those who are parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held that since the decree
pronounced by a court without jurisdiction in void, where the jurisdiction of
the court depends on the validity of the statute in question, the issue of
constitutionality will be considered on its being brought to the attention of the
court by persons interested in the effect to begin the statute. (12 C.J., sec.
184, p. 766.) And, even if we were to concede that the issue was not properly
raised in the court below by the proper party, it does not follow that the issue
may not be here raised in an original action of certiorari and prohibition. It is
true that, as a general rule, the question of constitutionality must be raised at
the earliest opportunity, so that if not raised by the pleadings, ordinarily it may
not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that
the general rule admits of exceptions. Courts, in the exercise of sound
discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [19884], 95
N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp
conflict of authorities, it is said that the question may be raised for the first
time at any state of the proceedings, either in the trial court or on appeal. (12
C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court
to pass on the constitutional question, though raised for first time on appeal,
if it appears that a determination of the question is necessary to a decision of
the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674;
124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685;
113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87
S. W., 913.) And it has been held that a constitutional question will be
considered by an appellate court at any time, where it involves the jurisdiction
of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to
the power of this court to consider the constitutional question raised for the
first time before this court in these proceedings, we turn again and point with
emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the
hypothesis that the Hongkong & Shanghai Banking Corporation, represented
by the private prosecution, is not the proper party to raise the constitutional
question here a point we do not now have to decide we are of the
opinion that the People of the Philippines, represented by the Solicitor-
General and the Fiscal of the City of Manila, is such a proper party in the
present proceedings. The unchallenged rule is that the person who impugns
the validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action
is brought, has a substantial interest in having it set aside. Of greater import
than the damage caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the enforcement of an
invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine
Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of
the legislature unconstitutional in an action instituted in behalf of the
Government of the Philippines. In Attorney General vs. Perkings([1889], 73
Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through
its Attorney General, instituted quo warranto proceedings to test the right of
the respondents to renew a mining corporation, alleging that the statute
under which the respondents base their right was unconstitutional because it
impaired the obligation of contracts. The capacity of the chief law officer of
the state to question the constitutionality of the statute was itself questioned.
Said the Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their representatives; that
to an accusation by the people of Michigan of usurpation their
government, a statute enacted by the people of Michigan is an
adequate answer. The last proposition is true, but, if the statute relied
on in justification is unconstitutional, it is statute only in form, and
lacks the force of law, and is of no more saving effect to justify action
under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the
people must bow . . . The legislature and the respondents are not the
only parties in interest upon such constitutional questions. As was
remarked by Mr. Justice Story, in speaking of an acquiescence by a
party affected by an unconstitutional act of the legislature: "The
people have a deep and vested interest in maintaining all the
constitutional limitations upon the exercise of legislative powers."
(Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action
(mandamus) was brought by the Attorney-General of Kansas to test the
rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge
should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information
charging a person with a violation of the statute. In other words, a
judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party litigant.
State ex rel. Nicholls, Governor, etc., is authority for the proposition
merely that an officer on whom a statute imposes the duty of
enforcing its provisions cannot avoid the duty upon the ground that
he considers the statute unconstitutional, and hence in enforcing the
statute he is immune from responsibility if the statute be
unconstitutional. State ex rel. Banking Co., etc., is authority for the
proposition merely that executive officers, e.g., the state auditor and
state treasurer, should not decline to perform ministerial duties
imposed upon them by a statute, on the ground that they believe the
statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the
state, and, above all, to support the Constitution of the state. If, in the
performance of his duty he finds two statutes in conflict with each
other, or one which repeals another, and if, in his judgment, one of
the two statutes is unconstitutional, it is his duty to enforce the other;
and, in order to do so, he is compelled to submit to the court, by way
of a plea, that one of the statutes is unconstitutional. If it were not so,
the power of the Legislature would be free from constitutional
limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the
general proposition that the state may impugn the validity of its laws. They
have not cited any authority running clearly in the opposite direction. In fact,
they appear to have proceeded on the assumption that the rule as stated is
sound but that it has no application in the present case, nor may it be invoked
by the City Fiscal in behalf of the People of the Philippines, one of the
petitioners herein, the principal reasons being that the validity before this
court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside
said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,.
10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the
past and all that time has not been attacked as unconstitutional by the Fiscal
of Manila but, on the contrary, has been impliedly regarded by him as
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.
"the exclusive power to grant pardons and reprieves and remit fines and
forfeitures". This power is now vested in the President of the Philippines. (Art.
VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution
differ in some respects. The adjective "exclusive" found in the Jones Law has
been omitted from the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of the offense, either
before or after conviction (Vide Constitution of the United States, Art. II, sec.
2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the
Philippines was thus empowered, like the President of the United States, to
pardon a person before the facts of the case were fully brought to light. The
framers of our Constitution thought this undesirable and, following most of
the state constitutions, provided that the pardoning power can only be
exercised "after conviction". So, too, under the new Constitution, the
pardoning power does not extend to "cases of impeachment". This is also the
rule generally followed in the United States (Vide Constitution of the United
States, Art. II, sec. 2). The rule in England is different. There, a royal pardon
can not be pleaded in bar of an impeachment; "but," says Blackstone, "after
the impeachment has been solemnly heard and determined, it is not
understood that the king's royal grace is further restrained or abridged."
(Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs.
Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake
[1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is
obvious. In England, Judgment on impeachment is not confined to mere
"removal from office and disqualification to hold and enjoy any office of honor,
trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the
Philippines) but extends to the whole punishment attached by law to the
offense committed. The House of Lords, on a conviction may, by its
sentence, inflict capital punishment, perpetual banishment, perpetual
banishment, fine or imprisonment, depending upon the gravity of the offense
committed, together with removal from office and incapacity to hold office.
(Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of
"commutation" and of the power of the executive to impose, in the pardons
he may grant, such conditions, restrictions and limitations as he may deem
proper. Amnesty may be granted by the President under the Constitution but
only with the concurrence of the National Assembly. We need not dwell at
length on the significance of these fundamental changes. It is sufficient for
our purposes to state that the pardoning power has remained essentially the
same. The question is: Has the pardoning power of the Chief Executive
under the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in
the Chief Executive. The exercise of the power may not, therefore, be vested
in
anyone
else.
Probation Act of March 4, 1925 to grant him probation even though the term
at which sentence was imposed had not yet expired. In this case of Murray,
the constitutionality of the probation Act was not considered but was
assumed. The court traced the history of the Act and quoted from the report
of the Committee on the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 2 Session) the following
statement:
Prior to the so-called Killitts case, rendered in December, 1916, the
district courts exercised a form of probation either, by suspending
sentence or by placing the defendants under state probation officers
or volunteers. In this case, however (Ex parte United States, 242
U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72
Ann. Cas. 1917B, 355), the Supreme Court denied the right of the
district courts to suspend sentenced. In the same opinion the court
pointed out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to
enact probation legislation. In 1917, a bill was favorably reported by
the Judiciary Committee and passed the House. In 1920, the judiciary
Committee again favorably reported a probation bill to the House, but
it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal
government with reference to its treatment of those convicted of
violations of its criminal laws in harmony with that of the states of the
Union. At the present time every state has a probation law, and in all
but twelve states the law applies both to adult and juvenile offenders.
(see, also, Johnson, Probation for Juveniles and Adults [1928], Chap.
I.)
The constitutionality of the federal probation law has been sustained by
inferior federal courts. In Riggs vs. United States supra, the Circuit Court of
Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the
questions under consideration have been reviewed by the Circuit
Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the
constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President. This
case will be found to contain an able and comprehensive review of
the law applicable here. It arose under the act we have to consider,
and to it and the authorities cited therein special reference is made
(Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the
Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F.
[2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain
and unequivocal language, pointed to Congress as possessing the requisite
power to enact probation laws, that a federal probation law as actually
enacted in 1925, and that the constitutionality of the Act has been assumed
by the Supreme Court of the United States in 1928 and consistently
sustained by the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of
the United States, may legally enact a probation law under its broad power to
fix the punishment of any and all penal offenses. This conclusion is supported
by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A,
1285; 151 Pac., 698, the court said: "It is clearly within the province of the
Legislature to denominate and define all classes of crime, and to prescribe
for each a minimum and maximum punishment." And in State vs. Abbott
([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B,
1189), the court said: "The legislative power to set punishment for crime is
very broad, and in the exercise of this power the general assembly may
confer on trial judges, if it sees fit, the largest discretion as to the sentence to
be imposed, as to the beginning and end of the punishment and whether it
should be certain or indeterminate or conditional." (Quoted in State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has
defined all crimes and fixed the penalties for their violation. Invariably, the
legislature has demonstrated the desire to vest in the courts particularly
the trial courts large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be served by
vesting this power in the courts, they being in a position to best determine the
penalties which an individual convict, peculiarly circumstanced, should suffer.
Thus, while courts are not allowed to refrain from imposing a sentence
merely because, taking into consideration the degree of malice and the injury
caused by the offense, the penalty provided by law is clearly excessive, the
courts being allowed in such case to submit to the Chief Executive, through
the Department of Justice, such statement as it may deem proper (see art. 5,
Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law
provides for a penalty composed of two indivisible penalties, the courts may
allow such circumstances to offset one another in consideration of their
number and importance, and to apply the penalty according to the result of
such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera
and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the
Revised Penal Code empowers the courts to determine, within the limits of
each periods, in case the penalty prescribed by law contains three periods,
the extent of the evil produced by the crime. In the imposition of fines, the
courts are allowed to fix any amount within the limits established by law,
considering not only the mitigating and aggravating circumstances, but more
particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.)
Article 68, paragraph 1, of the same Code provides that "a discretionary
penalty shall be imposed" upon a person under fifteen but over nine years of
age, who has not acted without discernment, but always lower by two
degrees at least than that prescribed by law for the crime which he has
committed. Article 69 of the same Code provides that in case of "incomplete
self-defense", i.e., when the crime committed is not wholly excusable by
reason of the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in article 11 and
12 of the Code, "the courts shall impose the penalty in the period which may
be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking." And, in case the commission of what are
known as "impossible" crimes, "the court, having in mind the social danger
and the degree of criminality shown by the offender," shall impose upon him
either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59,
Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive
imprisonment is deducted form the entire term of imprisonment, except in
certain cases expressly mentioned (art. 29); the death penalty is not imposed
when the guilty person is more than seventy years of age, or where upon
appeal or revision of the case by the Supreme Court, all the members thereof
are not unanimous in their voting as to the propriety of the imposition of the
death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as
amended by Commonwealth Act No. 3); the death sentence is not to be
inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of
age (art. 83); and when a convict shall become insane or an imbecile after
final sentence has been pronounced, or while he is serving his sentenced,
the execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue
harshness of the penal laws is more clearly demonstrated in various other
enactments, including the probation Act. There is the Indeterminate Sentence
Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No.
4225, establishing a system of parole (secs. 5 to 100 and granting the courts
large discretion in imposing the penalties of the law. Section 1 of the law as
amended provides; "hereafter, in imposing a prison sentence for an offenses
punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and to a minimum which
shall be within the range of the penalty next lower to that prescribed by the
Code for the offense; and if the offense is punished by any other law, the
court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum term prescribed by the
same." Certain classes of convicts are, by section 2 of the law, excluded from
the operation thereof. The Legislature has also enacted the Juvenile
Delinquency Law (Act No. 3203) which was subsequently amended by Act
No. 3559. Section 7 of the original Act and section 1 of the amendatory Act
have become article 80 of the Revised Penal Code, amended by Act No.
4117 of the Philippine Legislature and recently reamended by
Commonwealth Act No. 99 of the National Assembly. In this Act is again
manifested the intention of the legislature to "humanize" the penal laws. It
allows, in effect, the modification in particular cases of the penalties
prescribed by law by permitting the suspension of the execution of the
judgment in the discretion of the trial court, after due hearing and after
investigation of the particular circumstances of the offenses, the criminal
record, if any, of the convict, and his social history. The Legislature has in
reality decreed that in certain cases no punishment at all shall be suffered by
the convict as long as the conditions of probation are faithfully observed. It
this be so, then, it cannot be said that the Probation Act comes in conflict with
the power of the Chief Executive to grant pardons and reprieves, because, to
use the language of the Supreme Court of New Mexico, "the element of
punishment or the penalty for the commission of a wrong, while to be
declared by the courts as a judicial function under and within the limits of law
as announced by legislative acts, concerns solely the procedure and conduct
of criminal causes, with which the executive can have nothing to do." (Ex
parteBates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E.,
843), the court upheld the constitutionality of the Georgia probation statute
against the contention that it attempted to delegate to the courts the
pardoning power lodged by the constitution in the governor alone is vested
with the power to pardon after final sentence has been imposed by the
courts, the power of the courts to imposed any penalty which may be from
time to time prescribed by law and in such manner as may be defined cannot
be questioned."
We realize, of course, the conflict which the American cases disclose. Some
cases hold it unlawful for the legislature to vest in the courts the power to
suspend the operation of a sentenced, by probation or otherwise, as to do so
would encroach upon the pardoning power of the executive. (In re Webb
[1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9
Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev.,
150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla.
Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650;
People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St.
Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A.
[N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac.,
291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep.,
175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630;
181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs.
Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F.
[2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United
States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark.,
620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166;
122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex
parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick
[1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60;
168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371;
Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534;
35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522;
64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State
vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court
[1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399;
79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909],
75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82
Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151
Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y.,
288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel.
Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs.
Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App.
Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233
P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot
[1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B,
1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130
Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S.
W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998;
Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs.
State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932],
122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex.
Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24;
Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan
[1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich
[1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to
follow this long catena of authorities holding that the courts may be legally
authorized by the legislature to suspend sentence by the establishment of a
system of probation however characterized. State ex rel. Tingstand vs.
Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which provided for
the suspension of the execution of a sentence until otherwise ordered by the
court, and required that the convicted person be placed under the charge of a
parole or peace officer during the term of such suspension, on such terms as
the court may determine, was held constitutional and as not giving the court a
power in violation of the constitutional provision vesting the pardoning power
in the chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal
App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are
actually district and different from each other, both in origin and in nature. In
People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36
N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of
Appeals of New York said:
Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A.,
1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning
power of the Executive. The pardoning power, in respect to those serving
their probationary sentences, remains as full and complete as if the Probation
Law had never been enacted. The President may yet pardon the probationer
and thus place it beyond the power of the court to order his rearrest and
imprisonment.
(Riggs
vs.
United
States
[1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power
of the executive and is not for that reason void, does section 11 thereof
constitute, as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed
among three coordinate and substantially independent organs: the
legislative, the executive and the judicial. Each of these departments of the
government derives its authority from the Constitution which, in turn, is the
highest expression of popular will. Each has exclusive cognizance of the
matters within its jurisdiction, and is supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral
Legislature by the Jones Law (sec. 12) and in a unicamiral National
Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines).
The Philippine Legislature or the National Assembly may not escape its
duties and responsibilities by delegating that power to any other body or
authority. Any attempt to abdicate the power is unconstitutional and void, on
the principle that potestas delegata non delegare potest. This principle is said
to have originated with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a principle of agency,
was established by Lord Coke in the English public law in decisions
forbidding the delegation of judicial power, and found its way into America as
an enlightened principle of free government. It has since become an
accepted corollary of the principle of separation of powers. (5 Encyc. of the
Social Sciences, p. 66.) The classic statement of the rule is that of Locke,
namely: "The legislative neither must nor can transfer the power of making
laws to anybody else, or place it anywhere but where the people have."
(Locke on Civil Government, sec. 142.) Judge Cooley enunciates the
doctrine in the following oft-quoted language: "One of the settled maxims in
constitutional law is, that the power conferred upon the legislature to make
laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the state has located the authority, there it
must remain; and by the constitutional agency alone the laws must be made
until the Constitution itself is charged. The power to whose judgment,
wisdom, and patriotism this high prerogative has been intrusted cannot
relieve itself of the responsibilities by choosing other agencies upon which
the power shall be devolved, nor can it substitute the judgment, wisdom, and
patriotism of any other body for those to which alone the people have seen fit
to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed.,
Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.)
This court posits the doctrine "on the ethical principle that such a delegated
power constitutes not only a right but a duty to be performed by the delegate
by the instrumentality of his own judgment acting immediately upon the
matter of legislation and not through the intervening mind of another. (U. S.
vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not
absolute and inflexible. It admits of exceptions. An exceptions sanctioned by
immemorial practice permits the central legislative body to delegate
legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro
[1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh
vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256;
State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system
of government, that local affairs shall be managed by local authorities, and
general affairs by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation
of the municipalities exercising local self government has never been held to
trench upon that rule. Such legislation is not regarded as a transfer of general
legislative power, but rather as the grant of the authority to prescribed local
regulations, according to immemorial practice, subject of course to the
interposition of the superior in cases of necessity." (Stoutenburgh vs.
Hennick,supra.) On quite the same principle, Congress is powered to
delegate legislative power to such agencies in the territories of the United
States as it may select. A territory stands in the same relation to Congress as
a municipality or city to the state government. (United States vs. Heinszen
[1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas.,
688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49
Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation
of legislative power to the people at large. Some authorities maintain that this
may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs.
Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616).
However, the question of whether or not a state has ceased to be republican
in form because of its adoption of the initiative and referendum has been held
not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs.
Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224),
and as the constitutionality of such laws has been looked upon with favor by
certain progressive courts, the sting of the decisions of the more conservative
courts has been pretty well drawn. (Opinions of the Justices [1894], 160
Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57
Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific
States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14, paragraph 2, of
article VI of the Constitution of the Philippines provides that "The National
Assembly may by law authorize the President, subject to such limitations and
restrictions as it may impose, to fix within specified limits, tariff rates, import
or export quotas, and tonnage and wharfage dues." And section 16 of the
same article of the Constitution provides that "In times of war or other
national emergency, the National Assembly may by law authorize the
President, for a limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a declared
national policy." It is beyond the scope of this decision to determine whether
or not, in the absence of the foregoing constitutional provisions, the President
could be authorized to exercise the powers thereby vested in him. Upon the
other hand, whatever doubt may have existed has been removed by the
Constitution itself.
The case before us does not fall under any of the exceptions hereinabove
mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective
provincial boards have provided for the salary of a probation officer at
rates not lower than those now provided for provincial fiscals. Said
probation officer shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office. (Emphasis
ours.)
In testing whether a statute constitute an undue delegation of legislative
power or not, it is usual to inquire whether the statute was complete in all its
terms and provisions when it left the hands of the legislature so that nothing
was left to the judgment of any other appointee or delegate of the legislature.
(6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1),
this court adhered to the foregoing rule when it held an act of the legislature
void in so far as it undertook to authorize the Governor-General, in his
discretion, to issue a proclamation fixing the price of rice and to make the
appropriate the needed amount for the salary of a probation officer. The plain
language of the Act is not susceptible of any other interpretation. This, to our
minds, is a virtual surrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of
power to make the law, which necessarily involves a discretion as to what it
shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the
latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton
County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory
Construction, sec 68.) To the same effect are the decision of this court
in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil.,
547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz
vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court
sustained the validity of the law conferring upon the Governor-General
authority to adjust provincial and municipal boundaries. In the second case,
this court held it lawful for the legislature to direct non-Christian inhabitants to
take up their habitation on unoccupied lands to be selected by the provincial
governor and approved by the provincial board. In the third case, it was held
proper for the legislature to vest in the Governor-General authority to
suspend or not, at his discretion, the prohibition of the importation of the
foreign cattle, such prohibition to be raised "if the conditions of the country
make this advisable or if deceased among foreign cattle has ceased to be a
menace to the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the
simple transference of details of execution or the promulgation by executive
or administrative officials of rules and regulations to carry into effect the
provisions of a law. If we were, recurrence to our own decisions would be
sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29
Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu
Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31
Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as
law after it leaves the hands of the legislature. It is true that laws may be
made effective on certain contingencies, as by proclamation of the executive
or the adoption by the people of a particular community (6 R. C. L., 116, 170172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs.
Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the
United State ruled that the legislature may delegate a power not legislative
which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins.
Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
The various provincial boards are, in practical effect, endowed with the power
of suspending the operation of the Probation Law in their respective
provinces. In some jurisdiction, constitutions provided that laws may be
suspended only by the legislature or by its authority. Thus, section 28, article
I of the Constitution of Texas provides that "No power of suspending laws in
this state shall be exercised except by the legislature"; and section 26, article
I of the Constitution of Indiana provides "That the operation of the laws shall
never be suspended, except by authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a
law, or the execution or operation of a law, a law may not be suspended as to
certain individuals only, leaving the law to be enjoyed by others. The
suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec.,
174, 177, 178), it was said:
provisions of the act should not be enforced, they might, in their discretion,
suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period
specified in such order; and thereupon order the roads to be opened and
kept in good repair, under the laws theretofore in force." Said the court: ". . .
this act, by its own provisions, repeals the inconsistent provisions of a former
act, and yet it is left to the county court to say which act shall be enforce in
their county. The act does not submit the question to the county court as an
original question, to be decided by that tribunal, whether the act shall
commence its operation within the county; but it became by its own terms a
law in every county not excepted by name in the act. It did not, then, require
the county court to do any act in order to give it effect. But being the law in
the county, and having by its provisions superseded and abrogated the
inconsistent provisions of previous laws, the county court is . . . empowered,
to suspend this act and revive the repealed provisions of the former act.
When the question is before the county court for that tribunal to determine
which law shall be in force, it is urge before us that the power then to be
exercised by the court is strictly legislative power, which under our
constitution, cannot be delegated to that tribunal or to any other body of men
in the state. In the present case, the question is not presented in the abstract;
for the county court of Saline county, after the act had been for several
months in force in that county, did by order suspend its operation; and during
that suspension the offense was committed which is the subject of the
present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S.,
687.)
True, the legislature may enact laws for a particular locality different from
those applicable to other localities and, while recognizing the force of the
principle hereinabove expressed, courts in may jurisdiction have sustained
the constitutionality of the submission of option laws to the vote of the people.
(6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely
local in character which should receive different treatment in different
localities placed under different circumstances. "They relate to subjects
which, like the retailing of intoxicating drinks, or the running at large of cattle
in the highways, may be differently regarded in different localities, and they
are sustained on what seems to us the impregnable ground, that the subject,
though not embraced within the ordinary powers of municipalities to make bylaws and ordinances, is nevertheless within the class of public regulations, in
respect to which it is proper that the local judgment should control." (Cooley
on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny
the right of local self-government and the propriety of leaving matters of
purely local concern in the hands of local authorities or for the people of small
communities to pass upon, we believe that in matters of general of general
legislation like that which treats of criminals in general, and as regards the
general subject of probation, discretion may not be vested in a manner so
unqualified and absolute as provided in Act No. 4221. True, the statute does
not expressly state that the provincial boards may suspend the operation of
the Probation Act in particular provinces but, considering that, in being vested
with the authority to appropriate or not the necessary funds for the salaries of
probation officers, they thereby are given absolute discretion to determine
whether or not the law should take effect or operate in their respective
provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to
be held in abeyance until the provincial boards should decide otherwise by
appropriating the necessary funds. The validity of a law is not tested by what
has been done but by what may be done under its provisions. (Walter E.
Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature
not only in the expression of what may be termed legislative policy but in the
elaboration and execution thereof. "Without this power, legislation would
become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It
has been said that popular government lives because of the inexhaustible
reservoir of power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that these
representatives are no further restrained under our system than by the
express language of the instrument imposing the restraint, or by particular
provisions which by clear intendment, have that effect. (Angara vs. Electoral
Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35
Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a
grant and a limitation of power and one of these time-honored limitations is
that, subject to certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and
unlawful delegation of legislative authority to the provincial boards and is, for
this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill
of Rights which prohibits the denial to any person of the equal protection of
the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the
tree grand departments of our government and on the subordinate
instrumentalities and subdivision thereof, and on many constitutional power,
like the police power, taxation and eminent domain. The equal protection of
laws, sententiously observes the Supreme Court of the United States, "is a
pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U.
S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina,
249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what
may be regarded as a denial of the equal protection of the laws in a question
not always easily determined. No rule that will cover every case can be
formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22
Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating
against some and favoring others in prohibited. But classification on a
reasonable basis, and nor made arbitrarily or capriciously, is permitted.
(Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep.,
13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666;
17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.)
The classification, however, to be reasonable must be based on substantial
distinctions which make real differences; it must be germane to the purposes
of the law; it must not be limited to existing conditions only, and must apply
equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis.,
327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State
vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural
Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup.
Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough
[1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry.
Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed.,
536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J.,
pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from
the unwarranted delegation of legislative power, although perhaps this is not
necessarily the result in every case. Adopting the example given by one of
the counsel for the petitioners in the course of his oral argument, one
province may appropriate the necessary fund to defray the salary of a
probation officer, while another province may refuse or fail to do so. In such a
case, the Probation Act would be in operation in the former province but not
in the latter. This means that a person otherwise coming within the purview of
the law would be liable to enjoy the benefits of probation in one province
while another person similarly situated in another province would be denied
those same benefits. This is obnoxious discrimination. Contrariwise, it is also
possible for all the provincial boards to appropriate the necessary funds for
the salaries of the probation officers in their respective provinces, in which
case no inequality would result for the obvious reason that probation would
be in operation in each and every province by the affirmative action of
appropriation by all the provincial boards. On that hypothesis, every person
coming within the purview of the Probation Act would be entitled to avail of
the benefits of the Act. Neither will there be any resulting inequality if no
province, through its provincial board, should appropriate any amount for the
salary of the probation officer which is the situation now and, also, if we
accept the contention that, for the purpose of the Probation Act, the City of
Manila should be considered as a province and that the municipal board of
said city has not made any appropriation for the salary of the probation
officer. These different situations suggested show, indeed, that while
inequality may result in the application of the law and in the conferment of the
benefits therein provided, inequality is not in all cases the necessary result.
But whatever may be the case, it is clear that in section 11 of the Probation
Act creates a situation in which discrimination and inequality are permitted or
allowed. There are, to be sure, abundant authorities requiring actual denial of
the equal protection of the law before court should assume the task of setting
aside a law vulnerable on that score, but premises and circumstances
considered, we are of the opinion that section 11 of Act No. 4221 permits of
the denial of the equal protection of the law and is on that account bad. We
see no difference between a law which permits of such denial. A law may
appear to be fair on its face and impartial in appearance, yet, if it permits of
unjust and illegal discrimination, it is within the constitutional prohibitions. (By
analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550;
Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543;Ex
parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware
[1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113
U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30
Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct.
Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31
Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918],
247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words,
statutes may be adjudged unconstitutional because of their effect in
operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep.,
475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78
Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal
protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights
Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs.
Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R.,
386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R.
A., 858.) Under section 11 of the Probation Act, not only may said Act be in
force in one or several provinces and not be in force in other provinces, but
one province may appropriate for the salary of the probation officer of a given
year and have probation during that year and thereafter decline to
make further appropriation, and have no probation is subsequent years.
While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a
Section 11 of the Probation Act being unconstitutional and void for the
reasons already stated, the next inquiry is whether or not the entire Act
should be avoided.
In seeking the legislative intent, the presumption is against any
mutilation of a statute, and the courts will resort to elimination only
where an unconstitutional provision is interjected into a statute
otherwise valid, and is so independent and separable that its removal
will leave the constitutional features and purposes of the act
substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J.
Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs.
Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309;
49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs.
Moir ([1913], 25 Phil., 44, 47), this court stated the well-established
rule concerning partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic
Law, while another part is valid, the valid portion, if separable from
the valid, may stand and be enforced. But in order to do this, the valid
portion must be in so far independent of the invalid portion that it is
fair to presume that the Legislative would have enacted it by itself if
they had supposed that they could not constitutionally enact the
other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916;
128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek
Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain
to make a complete, intelligible, and valid statute, which carries out
the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.)
The void provisions must be eliminated without causing results
affecting the main purpose of the Act, in a manner contrary to the
intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617,
642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226;
26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S.,
540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22
L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou.,
439.) The language used in the invalid part of a statute can have no
legal force or efficacy for any purpose whatever, and what remains
must express the legislative will, independently of the void part, since
the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122
N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez
[1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895],
158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912;
6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act
applicable only in those provinces in which the respective provincial boards
provided for the salaries of probation officers were inoperative on
constitutional grounds, the remainder of the Act would still be valid and may
be enforced. We should be inclined to accept the suggestions but for the fact
that said section is, in our opinion, is inseparably linked with the other
portions of the Act that with the elimination of the section what would be left is
the bare idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial result of
that system. The clear policy of the law, as may be gleaned from a careful
examination of the whole context, is to make the application of the system
dependent entirely upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation officers at rates not
lower than those provided for provincial fiscals. Without such action on the
part of the various boards, no probation officers would be appointed by the
Secretary of Justice to act in the provinces. The Philippines is divided or
subdivided into provinces and it needs no argument to show that if not one of
the provinces and this is the actual situation now appropriate the
necessary fund for the salary of a probation officer, probation under Act No.
4221 would be illusory. There can be no probation without a probation officer.
Neither can there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and
visit the probationer. Every probation officer is given, as to the person placed
in probation under his care, the powers of the police officer. It is the duty of
the probation officer to see that the conditions which are imposed by the
court upon the probationer under his care are complied with. Among those
conditions, the following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful
character;
(c) Shall report to the probation officer as directed by the court or
probation officers;
(d) Shall permit the probation officer to visit him at reasonable times
at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the
probation officer concerning his conduct or condition; "(f) Shall
possible. But this would be arguing on what the law may be or should be and
not on what the law is. Between is and ought there is a far cry. The wisdom
and propriety of legislation is not for us to pass upon. We may think a law
better otherwise than it is. But much as has been said regarding progressive
interpretation and judicial legislation we decline to amend the law. We are not
permitted to read into the law matters and provisions which are not there. Not
for any purpose not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make
the Insular Government defray the salaries of probation officers in the
provinces but to make the provinces defray them should they desire to have
the Probation Act apply thereto. The sum of P50,000, appropriated "to carry
out the purposes of this Act", is to be applied, among other things, for the
salaries of probation officers in the central office at Manila. These probation
officers are to receive such compensations as the Secretary of Justice may
fix "until such positions shall have been included in the Appropriation Act". It
was the intention of the legislature to empower the Secretary of Justice to fix
the salaries of the probation officers in the provinces or later on to include
said salaries in an appropriation act. Considering, further, that the sum of
P50,000 appropriated in section 10 is to cover, among other things, the
salaries of the administrative personnel of the Probation Office, what would
be left of the amount can hardly be said to be sufficient to pay even nominal
salaries to probation officers in the provinces. We take judicial notice of the
fact that there are 48 provinces in the Philippines and we do not think it is
seriously contended that, with the fifty thousand pesos appropriated for the
central office, there can be in each province, as intended, a probation officer
with a salary not lower than that of a provincial fiscal. If this a correct, the
contention that without section 11 of Act No. 4221 said act is complete is an
impracticable thing under the remainder of the Act, unless it is conceded that
in our case there can be a system of probation in the provinces without
probation officers.
Probation as a development of a modern penology is a commendable
system. Probation laws have been enacted, here and in other countries, to
permit what modern criminologist call the "individualization of the
punishment", the adjustment of the penalty to the character of the criminal
and the circumstances of his particular case. It provides a period of grace in
order to aid in the rehabilitation of a penitent offender. It is believed that, in
any cases, convicts may be reformed and their development into hardened
criminals aborted. It, therefore, takes advantage of an opportunity for
reformation and avoids imprisonment so long as the convicts gives promise
of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law.
ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664,
665.) The Welfare of society is its chief end and aim. The benefit to the
individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law aside
because of the repugnancy to our fundamental law.
(c) The distinct federal and the state judicial organizations of the
United States do not embrace the integrated judicial system of the
Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p.
1317);
(a) The constitutional relations between the Federal and the State
governments of the United States and the dual character of the
American Government is a situation which does not obtain in the
Philippines;
JJ.,
concur.